UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


SARSWELL  Co.,  Li 

ItookbtuderSt 

PRINTERS.  . 

LAW  HOOKS,         A 

PUBLISHERS. etc." 


THE  RULES  AND  PRACTICE 


BEFORE 


THE  PARLIAMENT  OF  CANADA 


UPON 


BILLS  OF  DIVORCE 


BY 

ROBERT  VICTOR  SINCLAIR,  K.C. 

Of   0»goode    Hall.    Barrister. at-L«w 


LONDON  : 
SWEET  &  MAXWELL,  LIMITED 


S\ 


COPYBIGHT:  CANADA,  1915,  BY  THE  CARSWEIX  Co.,  LIMITED. 


D  £  //. 


f 


BY  PERMISSION 
THIS  WORK  IS  DEDICATED  TO 

Ebe  Donourable  James  H.  XouQheefc,  *.G.  p.C. 

LEADER   OF   THE   GOVERNMENT   IN   THE   SENATE 

AND   A   MEMBER  OF   THE  DIVORCE 

COMMITTEE   THEREOF. 


PREFACE. 


In  the  following  pages  an  attempt  has 
been  made  to  supply  a  long-felt  want.  The 
changes  in  divorce  practice  since  the  publica- 
tion of  Gemmill  on  Divorce  have  rendered  that 
excellent  work  practically  obsolete.  It  is  hoped 
that  the  notes  to  the  Rules  will  be  found  suffi- 
cient to  enable  the  practitioner  to  avoid  diffi- 
culties which  frequently  arise  in  the  prosecu- 
tion of  an  application  for  divorce.  All  the 
Rules  of  the  Senate  relating  to  divorce  pro- 
ceedings are  printed  in  the  book.  In  the  pre- 
paration of  the  work  reference  has  been  made 
to  Gemmill  on  Divorce,  Rayden  on  Divorce, 
and  Browne  &  Watts  on  Divorce. 

The  author  desires  to  acknowledge  his  ap- 
preciation of  the  kindness  of  the  Honourable 
James  A.  Lougheed,  K.C.  P.O.,  who  read  the 
draft  of  the  book  and  who  made  many  valu- 
able suggestions  which  have  been  incorporated 
in  it. 


CHAPTER  I. 

JURISDICTION  OF  PARLIAMENT. 

The  jurisdiction  of  the  Parliament  of 
Canada  in  reference  to  divorce  is  declared 
by  section  91,  sub-sec.  26,  of  The  British 
North  America  Act,  but  no  general  law  ap- 
plicable throughout  Canada  has  been  passed 
thereunder,  nor  has  jurisdiction  in  divorce 
been  conferred  on  any  Court.  At  the  time  of 
the  Union  in  1867,  Courts  exercising  juris- 
diction in  divorce  existed  in  the  Provinces  of 
Nova  Scotia  and  New  Brunswick,  and  such 
Courts  have  since  then  continued  to  deal  with 
divorce  applications  in  virtue  of  section  129 
of  The  British  North  America  Act,  by  which  it 
is  provided  that ' '  all  laws  in  force  in  Canada, 
Nova  Scotia  or  New  Brunswick,  at  the  Union, 
and  all  legal  commissions,  powers  and  authori- 
ties, and  all  officers,  judicial,  administrative, 
and  ministerial  existing  therein  at  the  Union, 
shall  continue  in  Ontario,  Quebec,  Nova 
Scotia  and  New  Brunswick  respectively,  as  if 
the  Union  had  not  been  made."  There  were 
then  no  Courts  exercising  such  jurisdiction  in 
either  Ontario  or  Quebec. 

At  the  time  of  the  admission  to  the  Union 
of  the  Provinces  of  Prince  Edward  Island  and 

B.D. — 1 


2  JURISDICTION   OF   PARLIAMENT. 

British .  Columbia,  the  Courts  of  these  pro- 
vinces exercised  jurisdiction  in  divorce,  and 
they  have  since  continued  to  do  so. 

While  the  jurisdiction  of  Parliament  in 
divorce  is  general  through  Canada,  and  it  is 
open  to  persons  domiciled  in  any  province  of 
Canada  to  apply  to  Parliament  for  a  divorce, 
in  practice  applications  to  Parliament  for  di- 
vorce are  confined  to  persons  domiciled  in  the 
Provinces  of  Quebec,  Ontario,  Manitoba,  Sas- 
katchewan, Alberta  and  the  Yukon  Territory. 

Under  The  British  North  America  Act, 
Canada  obtained  a  constitution  similar  in  prin- 
ciple to  that  of  the  United  Kingdom,  and 
within  the  limits  of  the  subjects  assigned  to  it 
the  Parliament  of  Canada  is  supreme,  and  its 
power  is  as  plenary  and  ample  as  that  of  the 
Parliament  of  the  United  Kingdom.  While 
in  the  exercise  of  such  power  the  Canadian 
Parliament  has  authority  to  grant  divorces 
for  any  reason  that  may  seem  to  it  sufficient, 
still  in  exercising  such  authority,  Parliament 
is  guided  by  and  practically  conforms  to  the 
principles  upon  which  divorces  are  granted 
by  the  Courts  of  England.  This  statement  is, 
however,  subject  to  this  exception,  that  in 
Canada  divorces  are  granted  on  the  applica- 
tion of  the  wife  on  the  sole  ground  of  adultery, 
while  in  England,  it  is  necessary  that  the 
adultery  should  be  accompanied  by  cruelty  or 
desertion,  or  the  husband  must  have  been 


JURISDICTION    OP    PARLIAMENT.  3 

guilty  of  incestuous  adultery,  of  bigamy  with 
adultery,  of  rape,  of  sodomy  or  bestiality. 

In  a  discussion  which  arose  in  the  Senate 
in  1888,  on  the  question  of  the  establishment  of 
a  Divorce  Court,  the  late  Senator  Gowan  in 
speaking  of  the  duties  and  functions  of  Par- 
liament, said:  "  It  (Parliament)  decides 
whether  the  charges  are  proved,  whether 
they  constitute  such  a  case  as  should  entitle 
the  party  to  a  special  Act  for  relief,  and  what 
relief,  if  any,  should  be  granted  to  the  party, 
in  view  of  all  the  circumstances;  and  Parlia- 
ment may,  and  ought  always,  to  have  in  regard, 
not  merely  the  question  as  it  affects  the  par- 
ties, but  the  effect  in  relation  to  morals  and 
good  order — the  effect  which  the  passing  a  par- 
ticular law  might  have  upon  the  well-being  of 
the  community.  Parliament  as  the  supreme 
power  has  its  duties  and  responsibilities  and 
cannot  compromise  the  well-being  of  society 
which  has  been  entrusted  to  it  under  the  Con- 
stitution. ' ' 


CHAPTER  II. 

DOMICILE  AS  AFFECTING  JURIS- 
DICTION. 

In  granting  or  withholding  relief  in  di- 
vorce applications,  Parliament  observes  the 
principles  of  the  law  of  domicile  as  recognized 
in  the  English  Divorce  Court.  A  woman  on 
marriage  acquires  the  domicile  of  her  hus- 
band, and  during  the  continuation  of  the  mar- 
riage she  has  and  can  acquire  no  domicile 
separate  from  that  of  her  husband.  Mere 
residence  short  of  actual  domicile  is  not  suffi- 
cient to  found  jurisdiction,  and  Parliament 
will  not  entertain  an  application  for  divorce 
unless  the  domicile  of  the  applicant  is  within 
Canada  at  the  time  of  the  application. 

The  English  Courts  do  not  recognize  as 
possessing  any  extra  territorial  validity  any 
decree  of  dissolution  of  marriage,  unless  pro- 
nounced or  recognized  in  a  country  in  which 
the  parties  were  domiciled  at  the  commence- 
ment of  'the  suit.  When  the  domicile  of  the 
parties  is  in  Canada,  a  divorce  obtained  by 
either  of  them  in  a  foreign  country  will  not  be 
recognized  by  Parliament. 

The  question  frequently  arises,  where  in 
answer  to  an  application  of  a  person  domiciled 
in  Canada  the  respondent  sets  up  a  divorce 


DOMICILE.  5 

obtained  in  the  United  States  of  America  fol- 
lowed by  remarriage  there.  Such  divorces 
have  no  validity  in  Canada,  and  the  cohabita- 
tion following  the  remarriage  is  adulterous 
and  affords  a  ground  for  relief. 

The  Hearns  case,  Stats,  of  1913,  p.  239, 
and  the  Hutcheon  case,  Stats,  of  1914,  p.  367, 
are  instances  in  which  the  wife  deserted  her 
husband,  obtained  a  divorce  in  the  United 
States  and  then  remarried. 

An  interesting  discussion  of  the  law  of 
domicile  as  affecting  the  jurisdiction  of  Parlia- 
ment, and  of  the  effect  of  American  divorces, 
will  be  found  in  the  Senate  debates  for  1887, 
in  the  Ash  case.  In  the  Harris  case  the  mar- 
riage took  place  in  Canada  in  1832.  The  Bill 
was  passed  by  both  Houses  in  1845,  when  both 
the  petitioner  and  respondent  were  absent 
from  the  province,  and  was  reserved  for  Her 
Majesty's  approval.  The  Bill  was  disallowed 
owing  to  the  fact  that  the  parties  were  not 
domiciled  in  Canada  at  the  date  of  the  passing 
of  the  Act. 

% 
PEOCEDURE. 

Applications  for  divorce  come  under  the 
head  of  Private  Bill  Legislation,  and  the  prac- 
tice and  procedure  is  now  governed  by  special 
standing  rules  and  orders  adopted  by  the 
Senate  in  1906. 


6  COMMITTEE    ON    DIVORCE. 

Apart,  however,  from  these  special  rules 
and  orders,  other  rules  relating  to  Private 
Bills,  when  not  inconsistent  with  such  rules 
and  orders,  apply  to  Divorce  Bills. 

The  rules  and  forms  seem  to  contemplate 
adultery  as  the  sole  ground  of  divorce,  that 
being  the  only  ground  specifically  stated,  but 
it  is  provided  by  Rule  152,  that,  in  cases  not 
provided  for,  the  principles  upon  which  the 
Imperial  Parliament  proceeds  in  dissolving 
marriage  may,  as  far  as  they  are  applicable,  be 
applied  to  divorce  proceedings  before  the 
Senate. 

APPOINTMENT  OF  COMMITTEE. 

At  the  commencement  of  each  session  a 
Committee  of  Selection,  consisting  of  nine 
Senators  named  by  the  Senate,  is  appointed, 
whose  duty  it  is  to  nominate  the  Senators  to 
serve  on  the  several  standing  Committees.  The 
Committee  of  Selection  appoints  the  Commit- 
tee on  Divorce,  composed  of  nine  Senators. 

Every  Standing  or  Special  Committee 
meets,  if  practicable,  on  the  next  sitting  day 
after  appointment  and  chooses  a  chairman; 
and  a  majority  of  Senators  appointed  on  such 
Committee  constitute  a  quorum,  unless  it  be 
otherwise  ordered. 

By  Rule  87,  Senators,  although  not  of  the 
Committee,  are  not  excluded  from  attending 


COMMITTEE    ON    DIVORCE.  7 

meetings  of  the  Committee  and  speaking ;  but 
they  must  not  vote.  They  sit  behind  the  mem- 
bers of  the  Committee. 

By  Rule  82,  no  other  persons,  unless  com- 
manded to  attend,  are  to  enter  at  any  meeting 
of  a  Committee  of  the  Senate.  This  does  not 
in  practice  apply  to  the  members  of  the  House 
of  Commons. 

Questions  before  the  Committee  are  de- 
cided by  a  majority  of  voices  including  the. 
voice  of  the  chairman ;  whenever  the  voices  are 
equal  the  decision  is  deemed  to  be  in  the  nega- 
tive.   Rule  123. 

The  Committee  chooses  its  chairman  at 
its  first  sitting.  As  presiding  officer,  he  has 
the  general  direction  of  the  proceedings  on 
the  trial  of  each  petition. 


CHAPTER  III. 

RULE  133. 

REFERENCE  OF  PETITION  TO  COMMITTEE- 
MEETINGS  OF  COMMITTEE. 

All  petitions  for  divorce  and  all  matters 
arising  out  of  petitions  for,  or  bills  of  divorce, 
shall  be  referred  to  the  Standing  Committee 
on  Divorce,  and  no  reference  to  any  Com- 
mittee other  than  that  Committee  shall  be 
necessary  with  respect  to  such  petitions,  bills 
and  matters.  B.  800,  sq. 

Notice  of  the  day,  hour  and  place  of  every 
sitting  of  the  Committee  shall  be  given  b.y 
posting  up  the  same  in  the  lobby  of  the  Senate 
not  later  than  the  afternoon  of  the  day  before 
the  time  appointed  for  such  sitting.  B.  807. 

NOTES. 

Formerly  proof  of  publication  had  to  be 
made  before  the  Standing  Orders  Committee. 
Now  the  Committee  on  Divorce  deals  with  that 
question,  as  well  as  with  all  other  questions 
arising  out  of  the  application. 

No  notice  of  the  sitting  of  the  Committee 
is  given  except  by  posting  in  the  lobby  of  the 
Senate,  but  ample  notice  is  always  given  so  as 
to  enable  the  parties  and  their  witnesses  to  be 
present. 


RULE  136. 

NOTICE  OF  APPLICATION  TO  BE  ADVERTISED 
THREE  MONTHS. 

Every  applicant  for  a  Bill  of  Divorce  shall 
give  notice  of  his  or  her  intended  application, 
and  shall  specify  therein  from  whom  and  for 
what  cause  such  divorce  is  sought,  and  shall 
cause  such  notice  to  be  published  during  at 
least  three  months  before  the  consideration  by 
the  Committee  on  Divorce  of  his  or  her  peti- 
tion for  the  said  Bill,  in  the  Canada  Gazette 
and  in  two  newspapers  published  in  the  district 
in  Quebec,  Manitoba,  Saskatchewan,  Alberta, 
British  Columbia  or  the  Northwest  Territor- 
ies, or  in  the  county  or  union  of  counties  in 
other  provinces,  wherein  such  applicant  usu- 
ally resided  at  the  time  of  the  separation  of  the 
parties ;  but  if  the  requisite  number  of  papers 
cannot  be  found  therein,  then  in  an  adjoining 
district  or  county  or  union  of  counties. 

Notices  given  in  the  Provinces  of  Quebec 
and  Manitoba  are  to  be  published  in  one  Eng- 
lish and  one  French  newspaper,  if  there  be 
such  newspapers  published  in  the  district,  but 
otherwise  shall  be  published  in  one  newspaper 
in  both  languages.  The  notice  may  be  in  the 
subjoined  Form  "A."  If  a  notice  given  for 
any  session  of  Parliament  is  not  completed  in 
time  to  allow  the  petition  to  be  dealt  with  dur- 
ing that  session,  the  petition  may  be  presented 


10  SENATE   RULE    136. 

and  dealt  with  during  the  next  ensuing  session, 
without  any  further  publication  of  such 
notice.  B.  802. 

NOTES. 

The  first  step  when  an  application  for  di- 
vorce is  intended  is  to  prepare  the  advertise- 
ment, which  should  conform  to  Form  A,  al- 
though by  Rule  150,  the  forms  prescribed  may 
be  varied  to  suit  the  circumstances  of  each 
case.  Adhesion  to  the  form  prescribed  obvi- 
ates questions  which  might  otherwise  be  raised 
as  to  the  sufficiency  of  the  notice. 

All  the  particulars  indicated  in  the  Form 
should  be  accurately  set  forth  and  every 
ground  on  which  the  divorce  is  sought  should 
be  specifically  stated.  Application  may  be 
made  on  the  following  grounds: — 

(a)  Adultery, 

(&)  Adultery  and  desertion, 

(c)  Adultery  and  cruelty, 

(d}  Adultery  and  desertion  and  cruelty. 

(e)  Bigamy. 

The  Stock  Case,  Stat.  of  1899,  p.  351. 
(/)  Bigamy  and  adultery. 

The  Leaitch  Case,  Stat.  of  1912,  p. 
175. 

The  Harrison  Case,  Stat.  of  1892,  p. 
140. 

Incestuous  adultery. 


SENATE   RULE    136.  H 

(h)  Rape. 

(i)    Sodomy  and  unnatural  offences. 

The  Dakin  Case,  Stat.  of  1911,  p.  319. 
(j)    Bestiality. 

(ft)  Malformation  at  time  of  marriage. 
(I)  Nullity  of  marriage,  owing  to  fraud, 
when  there  has  been  no  consumma- 
tion by  cohabitation. 
The  Stevenson  Case,  Stat.  of  1869, 

p.  v. 
The  Lavell  Case,  Stat.  of  1887,  p.  331. 

So  far  as  the  writer  is  aware,  the  only 
other  ground  for  dissolution  of  marriage, 
which  has  been  considered  by  Parliament,  is 
that  of  impotency. 

In  the  White  case,  session  of  1888,  the 
application  by  the  wife  was  based  on  the  mal- 
formation or  impotency  of  the  respondent. 
The  respondent,  following  the  practice  in  the 
English  Divorce  Court,  was  ordered  to  attend 
for  medical  examination,  and  both  parties 
having  been  examined,  the  physicians  reported 
to  the  Committee  that  there  was  no  malforma- 
tion apparent  in  the  respondent,  and  that  the 
physical  condition  of  the  petitioner  was  such 
as  to  contradict  her  statement  that  the  mar- 
riage had  not  been  consummated.  The  bill  was 
rejected.  The  case  is  referred  to  as  an  ex- 
ample of  the  principle  that  Parliament  is  dis- 
posed to  grant  relief  upon  grounds  recognized 


12  SENATE   RULE    136. 

in  the  former  Ecclesiastical  Courts  of  England 
as  sufficient  to  declare  a  marriage  null  and 
void  when  it  is  shown  to  the  Committee  that 
the  Courts  of  the  province  in  which  the  ap- 
plication arises  have  no  jurisdiction  to  grant 
relief  upon  such  grounds. 

In  Quebec  the  Provincial  Courts  have 
jurisdiction  to  annul  a  marriage  for  impo- 
tency,  natural  or  accidental,  existing  at  the 
time  of  the  marriage;  but  only  if  such  impo- 
tency  be  apparent  and  manifest.  This  nullity 
cannot  be  invoked  by  anyone  but  the  party 
who  has  contracted  the  marriage  with  the  im- 
potent person,  nor  at  any  time  after  three 
years  from  the  marriage. 

In  Ontario  the  Courts  have  no  jurisdic- 
tion to  entertain  an  action  to  have  a  marriage 
declared  null  and  void  upon  the  ground  of 
impotency:  T.  v.  B.,  15  O.  L.  E.  224;  nor 
upon  the  ground  that  one  of  the  parties  was 
of  unsound  mind,  and,  therefore,  incapable 
of  entering  into  the  contract  of  marriage 
when  the  ceremony  was  performed:  A.  v.  B., 
23  O.  L.  E.  261 ;  nor  upon  the  ground  that  the 
parties  are  related  within  the  prohibited 
degrees :  May  v.  May,  22  O.  L.  E.  559 ;  nor  to 
have  declared  void  a  marriage  duly  solem- 
nized unless  the  case  can  be  brought  under  sec- 
tion 36  of  The  Marriage  Act,  E.  S.  O.  1914, 
c.  148;  Reid  v.  Aull,  32  O.  L.  E.  68.  This 
is  also  the  law  in  Manitoba,  Saskatchewan, 


SENATE   RULE    136.  13 

Alberta  and  the  Yukon  Territory.  Should 
any  of  the  above  cases  arise  hereafter  in  any 
of  these  provinces,  the  only  forum  open  to  the 
aggrieved  spouse  is  Parliament,  to  which  body 
the  right  to  grant  relief  belongs. 

In  the  event  of  a  case  arising  in  the  Pro- 
vince of  Quebec  founded  on  impotency,  it  is 
probable  that  Parliament  would  decline  to 
give  relief  since,  as  already  pointed  out,  the 
Courts  of  that  province  have  jurisdiction  to 
annul  a  marriage  for  such  cause. 

If  legal  proceedings  have  been  taken  by 
the  petitioner  for  Crim.  Con.  and  judgment 
has  been  recovered,  these  facts  should  be  set 
forth  and  should  be  proved  by  a  certified  copy 
of  the  judgment. 

The  advertisement  must  be  published  for 
at  least  three  months  in  the  Canada  Gazette 
and  in  two  newspapers.  This  means  publica- 
tion once  a  week  for  fourteen  weeks.  The 
notices  in  the  Gazette  and  in  the  newspapers 
must  be  identical.  A  copy  of  each  issue  of  the 
newspaper  containing  tire  advertisement 
should  be  obtained  by  the  solicitor  for  the  pur- 
pose of  proving  publication  before  the  Com- 
mittee. Proof  of  publication  is  made  by  Statu- 
tory declaration  under  the  Canada  Evidence 
Act. 

The  standing  orders  of  the  House  of  Com- 
mons apply  to  Private  Bills,  applications  for 


14  SENATE   RULE    136. 

which  must  by  such  orders  be  published  for  at 
least  two  months  in  the  Canada  Gazette,  and 
when  the  application  comes  from  either  the 
Province  of  Quebec  or  Manitoba,  in  English  in 
one  English  newspaper  and  in  French  in  one 
French  newspaper,  published  in  the  district 
in  which  the  applicant  usually  resided  at  the 
time  of  the  separation  of  the  parties,  or  if 
there  is  no  newspaper  published  therein,  then 
in  both  languages  in  a  newspaper  published 
in  an  adjoining  district. 

When  the  application  comes  from  any  of 
the  other  provinces,  the  notice  is  to  be  pub- 
lished for  at  least  two  months  in  the  Canada 
Gazette,  and  in  one  newspaper  published  in 
the  city,  county  or  union  of  counties,  where 
the  applicant  usually  resided  at  the  time  of  the 
separation. 

Publication  for  at  least  two  months  means 
nine  consecutive  weekly  insertions. 

The  publication  is  to  be  in  the  interval  of 
time  between  the  close  of  the  preceding  ses- 
sion and  the  consideration  of  the  petition. 

Where  the  publication  is  not  completed 
in  time  to  allow  of  the  petition  being  consid- 
ered during  the  session  for  which  notice  is 
given,  the  petition  may  so  far  as  the  Senate  is 
concerned  be  presented  and  heard  without 
further  publication  of  the  notice.  This  rule 
does  not  apply  to  the  House  of  Commons.  The 


SENATE   RULE    136.  15 

notice  must  be  republished  for  two  months  as 
above  stated. 

The  length  of  the  sessions  of  Parliament 
being  uncertain,  it  is  important,  if  possible, 
to  have  the  advertising  completed  at  least  by 
the  opening  day  of  the  session  for  which  notice 
is  given.  The  time  required  to  secure  the  pas- 
sage of  a  bill,  even  of  the  simplest  character, 
through  both  Houses  of  Parliament  is  at  least 
six  weeks,  and  in  cases  in  which  there  are  com- 
plications the  time  is  much  longer.  When  the 
advertising  is  not  completed  until  some  time 
after  the  session  has  commenced  the  petitioner 
runs  the  risk  of  prorogation  before  the  bill 
passes  both  Houses,  and  besides  suffering  from 
the  necessity  of  waiting  until  another  session 
to  obtain  the  relief  to  which  he  may  be  entitled, 
is  obliged  to  incur  the  additional  expense  inci- 
dent to  prosecuting  his  petition  at  the  next 
session. 


EULE  139. 

CONTENTS  OF  PETITION — GKOUNDS  FOB  BELIEF — 
NEGATIVING  OF  CONDONATION — VEBIFICATION 
BY  STATUTOBY  DECLABATION — ENDOBSEMENT 
ON  COPY  SEBVED. 

The  petition  of  an  applicant  for  a  Bill  for 
divorce  must  be  fairly  written  and  must  be 
signed  by  the  petitioner,  and  should  briefly 
set  forth  the  marriage,  the  names  in  full  of 
the  parties  thereto,  their  ages  and  occupations, 
when,  where  and  by  whom  the  ceremony  was 
performed,  the  domicile  and  residence  of  each 
of  the  parties  at  the  time  of  the  marriage, 
their  matrimonial  domicile,  residence,  and  any 
change  thereof,  the  material  facts  upon  which 
the  petitioner  relies  as  the  grounds  on  which 
relief  is  asked,  and  the  nature  of  the  relief 
prayed  for. 

The  petition  should  also  negative  conniv- 
ance at  or  condonation  of  the  wrong  com- 
plained of  and  collusion  in  the  application  for 
divorce. 

2.  The  allegations  of  the  petition  must  be 
verified  by  declaration  of  the  petitioner,  under 
The  Canada  Evidence  Act,  1893. 

3.  The  copy  of  the  petition  served  upon 
the  respondent  shall  have  endorsed  thereon, 
or  appended  thereto,  the  following  informa- 
tion : — 


SENATE  RULE  139.  17 

(1)  The  petitioner's  residence  at  the  time 
of  service. 

(2)  A  Post  Office  address  in  Canada  at 
which  letters  and  notices  for  the  petitioner 
may  be  delivered. 

(5)  The  name  and  address  of  the  solici- 
tor, if  any,  acting  for  the  petitioner. 

(4)  If  such  solicitor's  address  is  not  at 
Ottawa,  the  name  and  address  of  some  agent 
for  him  at  Ottawa,  upon  whom  all  notices 
and  papers  may  be  served. 

(5)  That  if  the  respondent  desires  to  op- 
pose the  granting  of  the  divorce  and  to  be 
heard  by  the  Senate  Committee  on  Divorce, 
the  respondent  must  send  a  notice  to  that 
effect  to  the  Clerk  of  the  Senate  at  the  Par- 
liament   Buildings,    Ottawa,    within    two 
months  from  the  date  of  service  upon  'the 
respondent,  and  must  in  the  notice  to  the 
Clerk  of  the  Senate  give:— 

(a)  The   respondent's   residence   at  the 
time  of  sending  such  notice. 

(6)  A  Post  Office  address  in  Canada  at 
which  letters  and  notices  for  the  respondent 
may  be  delivered. 

(c)  The  name  and  address  of  the  solici- 
tor, if  any,  acting  for  the  respondent. 

(d)  If  such  solicitor's  address  is  not  at 
Ottawa,  the  name  and  address  of  some  agent 

B.D. 2 


18  SENATE  RULE  139. 


for  him  at  Ottawa,  upon  whom  all  notices 
and  papers  may  be  served. 


That,  if  the  respondent  does  not  so 
notify  the  Clerk  of  the  Senate,  the  petition 
may  be  considered,  and  a  Bill  of  Divorce 
founded  thereon  may  be  passed,  without 
any  further  notice  to  the  respondent. 

(7)  When  the  petition  is  one  by  a  hus- 
band for  a  divorce  from  his  wife,  that,  if 
the  wife  shows  to  the  satisfaction  of  the 
Senate  Committee  on  Divorce  that  she  has, 
and  is  prepared  to  establish  upon  oath,  a  good 
defence  to  the  charges  made  by  the  petition, 
and  that  she  has  not  sufficient  money  to  de- 
fend herself,  the  Committee  may  make  an 
order  that  her  husband  shall  provide  her 
with  the  necessary  means  to  sustain  her  de- 
fence, including  the  cost  of  retaining  Coun- 
sel and  the  travelling  and  living  expenses 
of  herself  and  of  witnesses  summoned  to 
Ottawa  on  her  behalf.  B.  804  (£),  seq. 

NOTES. 

Applications  to  Parliament  for  Private 
Bills  are  instituted  by  three  petitions  ad- 
dressed respectively  to  the  Governor-General 
in  Council,  The  Senate  and  The  House  of  Com- 
mons. The  petitions  must  be  signed  by  the 
petitioner  himself,  not  by  his  Counsel  or  So- 
licitor. If  the  petitioner  cannot  write  he 


SENATE  RULE  139.  19 

should  make  his  mark  in  the  presence  of  a 
witness,  who  should  attest  the  execution  of 
the  petition  by  the  petitioner  and  verify  such 
execution  by  affidavit. 

The  form  of  the  petition  to  the  Governor- 
General  is  as  follows :— 

To  Field  Marshall  His  Royal  Highness 
Prince  Arthur  William  Patrick  Albert  Duke 
of  Connaught  and  of  Strathearn,  Earl  of  Sus- 
sex (in  the  Peerage  of  the  United  Kingdom) ; 
Prince  of  the  United  Kingdom  of  Great  Brit- 
ain and  Ireland;  Duke  of  Saxony;  Prince  of 
Saxe-Coburg  and  Gotha;  Knight  of  the  Most 
Noble  Order  of  the  Garter ;  Knight  of  the  Most 
Ancient  and  Most  Noble  Order  of  the  Thistle ; 
Knight  of  the  Most  Illustrious  Order  of  Saint 
Patrick;  One  of  His  Majesty's  Most  Honour- 
able Privy  Council ;  Grand  Master  of  the  Most 
Honourable  Order  of  the  Bath ;  Knight  Grand 
Commander  of  the  Most  Exalted  Order  of  the 
Star  of  India;  Knight  Grand  Cross  of  the 
Most  Distinguished  ,Order  of  St.  Michael  and 
St.  George ;  Knight  Grand  Commander  of  The 
Most  Eminent  Order  of  the  Indian  Empire; 
Knight  Grand  Cross  of  the  Royal  Victorian 
Order;  Personal  Aide-de-Camp  of  His 
Majesty  the  King;  Governor-General  and 
Commander  in  Chief  of  the  Dominion  of 
Canada. 

The  petition  of   

humbly  showeth 


20  SENATE  RULE  139. 

* 

(1)  That  (here  set  out  the  various  paragraphs 
of  the  petition  as  in  Form  C.) 

Wherefore  your  petitioner  humbly  prays 
that  your  Excellency  may  be  pleased  to  sanc- 
tion the  passing  of  an  Act  dissolving  the  said 
marriage  between  your  petitioner  and  the  said 
C.  D.,  and  enabling  your  petitioner  to  marry 
again  and  granting  your  petitioner  such 
further  and  other  relief  in  the  premises  as  to 
your  Excellency  may  seem  meet. 

And  as  in  duty  bound  your  petitioner  will 
ever  pray. 

(Date) 


Signature  of  Petitioner. 

This  petition  should  be  sent  to  The  Hon- 
ourable The  Secretary  of  State  for  submission 
to  His  Excellency  in  Council. 

The  petition  to  the  House  of  Commons  is 
addressed,  To  The  Honourable,  The  House  of 
Commons  of  Canada  in  Parliament  assembled, 
and  proceeds  as  in  Form  C. 

Where  the  petitioner's  solicitor  does  not 
reside  at  Ottawa,  he  must  appoint  an  agent 
at  Ottawa,  upon  whom  papers  may  be  served. 
The  agent's  name  and  address  must  be  stated 
in  the  endorsement  on  the  petition. 


SENATE  RULE  139.  21 

If  the  respondent  intends  to  oppose  the 
application  he  must  within  two  months  after 
service  of  the  petition  upon  him  send  to  the 
Clerk  of  the  Senate  a  notice  to  that  effect  in 
which  he  must  state : — 

(a)  His  then  residence. 

(&)  A  Post  Office  address  in  Canada  at 
which  letters  and  notices  for  him  may  be 
delivered. 

(c)  The  name  and  address  of  his  solicitor, 
if  any. 

(d)  If  such  solicitor's  address  is  not  at 
Ottawa,  the  name  and  address  of  some  agent 
for  him  at  Ottawa,  upon  whom  all  notices 
and  papers  may  be  served. 

It  is  important  in  the  respondent's  inter- 
est, that  the  foregoing  notice  and  information 
should  be  sent  to  the  Clerk  of  the  Senate  as 
failure  to  comply  with  this  requirement  may 
result  in  the  petition  being  considered  and  the 
divorce  being  granted  without  further  notice 
to  the  respondent. 

When  the  wife's  means  are  insufficient  to 
enable  her  to  bear  the  expenses  of  the  defence, 
the  Committee  will  order  the  petitioning  hus- 
band to  furnish  her  with  such  money  as  the 
Committee  may  deem  sufficient  to  pay  counsel 
fees,  witness  fees,  travelling  expenses  and  the 
living  expenses  of  herself  and  her  witnesses 
at  Ottawa.  • 


RULE  137. 

SERVICE  OF  NOTICE  AND  PETITION. 

A  copy  of  the  said  notice  and  a  copy  of 
the  petition  to  be  presented  shall,  at  the  in- 
stance of  the  applicant,  and  not  less  than  two 
months  before  the  consideration  by  the  Com- 
mittee of  the  petition,  be  served  personally, 
when  that  can  be  done,  on  the  person  from 
whom  the  divorce  is  sought,  who  is  hereinafter 
called  "  the  respondent." 

If  the  residence  of  the  respondent  is  not 
known  or  personal  service  cannot  be  effected, 
then,  if  it  be  shown  to  the  satisfaction  of  the 
Committee  that  all  reasonable  efforts  have 
been  made  to  effect  personal  service,  and,  if 
unsuccessful,  to  bring  such  notice  and  petition 
to  the  knowledge  of  the  respondent,  what  has 
been  done  may  be  deemed  and  taken  by  the 
Committee  as  sufficient  service. 

NOTES. 

The  notice,  of  which  a  copy  is  to  be  served 
on  the  respondent,  is  the  notice  published  in 
the  Canada  Gazette.  The  copy  of  the  petition, 
which  is  directed  to  be  served,  must  have 
thereon  the  endorsement  mentioned  in  Rule 
139.  Service,  when  made  in  Canada,  is  proved 
by  statutory  declaration.  The  identity  of  the 
person  served  with  the  respondent  must  be 
established  by  the  declaration.  The  person 


SENATE  RULE  137.  23 

effecting  service  should  have  a  duplicate  of  the 
notice  and  of  the  petition  and  endorsement 
with  him,  upon  which  he  should  endorse  the 
date  of  service,  the  place  of  service,  and  the 
facts  establishing  the  identity  of  the  person 
served  with  the  respondent.  It  would  be  well 
also  to  add  the  date  on  which  the  foregoing 
facts  are  so  endorsed,  and  all  these  facts  should 
appear  in  the  declaration  of  service.  The 
copies  of  the  notice  and  of  the  petition  which 
are  served  must  be  left  with  the  respondent. 
When  service  is  effected  in  a  foreign  country 
proof  of  service  must  be  made  by  affidavit.  A 
declaration  of  service  in  such  case  will  not  be 
accepted  by  the  Committee,  The  Canada  Evi- 
dence Act  having  no  application  outside  of 
Canada. 

With  respect  to  affidavits  of  service  made 
in  a  foreign  country,  it  may  be  said  generally 
that  such  affidavits  when  made  in  accordance 
with  the  forms  required  by  the  laws  of  the 
country  where  they  were  made  will  be  ac- 
cepted by  the  Committee. 

Adherence  to  the  following  suggestions 
will  probably  obviate  difficulties  which  con- 
stantly arise  before  the  Committee  in  conse- 
quence of  affidavits  of  service  made  in  a 
foreign  country  being  found  defective  in  form. 
If  such  affidavits  are  made  :— 

(a)  In  England  or  Ireland, 


24  SENATE  RULE  137. 

Before  a  Commissioner  authorized  to 
administer  oaths  in  the  Supreme  Court  of 
Judicature  of  England  or  Ireland. 

Before  a  Judge  of  the  Supreme  Court 
of  Judicature  of  England  or  Ireland. 

Before  a  Judge  of  any  County  Court 
of  England  or  Ireland  within  his  county. 

In  Great  Britain  or  Ireland  before 
the  Mayor  or  Chief  Magistrate  of  any  City, 
Borough  or  Town  Corporate,  certified  under 
the  common  seal  of  such  City,  Borough  or 
Town  Corporate. 

(&)  In  Scotland, 

Before  a  Judge  of  the  Court  of  Ses- 
sion or  the  Justiciary  Court  of  Scotland. 

(c)  In  any  Colony  of  Great  Britain, 

Before  a  Judge  of  any  Court  of  Re- 
cord or  of  supreme  jurisdiction. 

(d)  In  any  Foreign  Place, 

Before  a  Judge  of  any  Court  of  Re- 
cord or  of  supreme  jurisdiction  or  before 
any  consul,  vice-consul  or  consular  agent  of 
His  Majesty  exercising  his  functions. 

And  generally  wherever  made,  before  a  Notary 
Public  certified  under  his  hand  and  seal,— 
such  affidavits  will  be  considered  sufficient. 

It  must  be  remembered,  however,  that 
when  such  affidavits  are  made  in  the  United 


SENATE  RULE  137.  25 

States  of  America  before  a  Notary  Public  a 
certificate  must  be  attached  signed  by  an  offi- 
cial of  a  Court  of  Record  showing  that  the 
Notary's  Commission  as  a  Notary  is  in  force, 
as  in  that  country  Notaries'  Commissions  re- 
quire to  be  renewed  annually. 

The  object  of  service  being  to  give  the  re- 
spondent notice  of  the  application,  the  prim- 
ary consideration,  where  personal  service  can- 
not be  effected,  is  how  notice  of  the  application 
can  best  be  brought  to  the  personal  attention 
of  the  respondent.  A  copy  of  the  notice  and 
petition  should  be  left  at  or  mailed  registered, 
postage  prepaid,  to  the  last  known  place  of 
residence  and  last  known  address  of  the  re- 
spondent. A  copy  should  also  be  delivered  or 
similarly  mailed  to  any  relative  or  other  per- 
son known  or  likely  or  believed  to  be  in  com- 
munication with  the  respondent,  and  even 
though  the  relative  is  not  known  to  be  in  com- 
munication with  the  respondent,  it  is  advisable 
to  serve  him  and  such  relative  or  other  person 
should  be  asked  for  the  respondent's  address, 
and  the  reply  received  should  be  set  out  in  the 
affidavit.  If  the  respondent  has  a  solicitor  or 
business  agent,  a  copy  of  the  papers  should 
be  given  to  him.  If  the  respondent  is  known 
to  be  residing  temporarily  at  some  address, 
other  than  that  of  his  ordinary  residence,  at- 
tempts to  serve  him  there  should  be  made,  and 
copies  of  the  papers  should  be  left  there  for 


26  SENATE  RULE  137. 

him.  If  there  is  reason  to  believe  that  the  re- 
spondent is  aware  of  the  proceedings  and  has 
evaded  service,  such  facts  should  be  set  out  in 
the  declaration  or  affidavit.  In  fact  the  de- 
claration or  affidavit  should  show  that  every 
reasonable  attempt  has  been  made  to  effect 
service  or  to  bring  notice  of  the  application 
to  the  attention  of  the  respondent. 

The  respondent's  solicitor  will  ascertain 
the  date  of  hearing  by  reference  to  the  Notice 
of  the  Sittings  of  the  Committee,  which  is 
posted  in  the  lobby  of  the  Senate. 

Month  in  this  rule  means  calendar  month. 

In  the  Ash  Case,  1887,  the  whereabouts 
of  the  respondent  William  Manton  were  un- 
known. Susan  Ash,  his  wife,  was  applying  for 
divorce  on  the  ground  of  desertion  and  be- 
cause the  respondent  had  obtained  a  divorce 
in  the  United  States  and  had  remarried. 

The  several  declarations  of  attempted 
service  showed  the  following  facts :  That  Wil- 
liam Manton  was  reputed  to  reside  in  the  City 
of  Boston  or  in  West  Medford,  Massachusetts, 
and  that  true  copies  of  the  notice  were  mailed 
in  the  Ottawa  Post  Office  to  him  at  each  place, 
postage  prepaid. 

That  respondent  had  obtained  a  divorce, 
in  the  Supreme  Court  of  the  City  of  Suffolk 
in  the  State  of  Massachusetts,  from  Susan 


SENATE  RULE  137.  37 

Ash,  and  had  afterwards  married  a  Miss  Mary 
Hatch  and  was  cohabiting  with  her,  as  man 
and  wife,  in  the  City  of  Boston. 

That  deponent  had  made  several  attempts 
to  discover  the  place  of  residence  of  respon- 
dent, that  he  had  enquired  of  Joseph  Manton 
of  Montreal,  respondent's  uncle,  as  to  respon- 
dent's place  of  residence,  but  could  get  no  in- 
formation. That  he  had  employed  a  detective 
agency  to  trace  respondent  without  success. 
That  he  believed  respondent,  having  been  in- 
formed that  he  was  liable  to  be  prosecuted  for 
bigamy,  was  hiding  and  passing  under  an  as- 
sumed name.  That  enquiries  had  been  made 
of  Catharine  Hatch,  mother  of  Mary  Hatch, 
as  to  respondent's  whereabouts,  and  that  she 
had  stated  that  respondent  had  taken  up  his 
residence  in  West  Medford.  That  a  copy  of 
said  notice  had  been  served  on  respondent's 
uncle,  who  had  stated  that  he  had  not  heard 
from  respondent  for  many  years,  to  wit,  since 
he  left  Canada.  That  a  copy  of  the  notice  had 
been  served  on  Catharine  Hatch. 

These  attempts  to  serve  were  held  by  the 
Committee  to  be  sufficient. 


RULE  138. 

PRESENTATION  OF  PETITION. 

No  petition  for  a  bill  of  divorce  shall  be 
presented  to  the  Senate  after  the  first  sixty 
days  of  the  Session. 

NOTE. 

The  time  for  receiving  petitions  is  fre- 
quently extended,  but  if  for  reasons  beyond 
the  control  of  the  petitioner  it  has  been  im- 
possible to  present  the  petition  before  the  ex- 
piry of  the  time,  a  petition  for  leave  to  present 
the  petition  may  be  resorted  to,  and  if  the 
Senate  is  satisfied  that  the  delay  is  reasonably 
accounted  for,  leave  to  present  the  petition 
is  usually  granted. 


RULE  141. 

REFERENCE  OF  PETITION  TO  COMMITTEE — DUPLI- 
CATE COPIES  OF  PETITION  AND  ALL  OTHER 
PAPERS  TO  BE  FURNISHED  TO  COMMITTEE. 

The  petition  when  presented  to  the  Senate 
shall  be  accompanied  by  the  evidence  of  the 
publication  of  the  notice  as  required  by  Rule 
136,  and  by  declaration  in  evidence  of  the  ser- 
vice of  a  copy  of  the  notice  and  of  a  copy  of 
the  petition  as  provided  by  Rule  137.  The 
petition,  notice,  and  evidence  of  publication 


SENATE  RULE  141. 


29 


and  service,  and  all  papers  connected  there- 
with, shall  thereupon  stand  as  referred,  with- 
out special  order  to  that  effect,  to  the  Stand- 
ing Committee  on  Divorce. 

A  copy  of  every  petition  for  a  bill  of 
divorce,  or  relating  to  any  matter  arising  out 
of  an  application  for  divorce  and  of  every 
document  and  paper  accompanying  such  peti- 
tion or  produced  in  evidence  before  the  Com- 
mittee, shall  be  furnished  to  the  Committee 
by  the  person  on  whose  behalf  the  petition, 
document  or  paper  is  presented  or  produced. 

NOTES. 

The  solicitor  must  be  careful  to  see  that 
the  petition  when  presented  to  the  Senate  is 
accompanied  by, 

(1)  Evidence,  by  Statutory  Declaration, 
of  publication  in  the  newspaper  for  14  con- 
secutive weeks,  and  in  the  Gazette  for  the 
same  time.  Copies  of  the  newspapers  con- 
taining the  first  and  last  insertions  should 
be  furnished  to  the  Clerk  of  the  Committee. 


Evidence,  by  Statutory  Declaration 
or  affidavit,  of  service  of  a  copy  of  the  notice 
and  of  a  copy  of  the  petition  on  the  respon- 
dent, or  the  like  evidence  of  attempts  to 
serve  the  respondent. 

A  duplicate  copy  of  the  petition  and  of 
the  foregoing  declarations  and  of  every  docu- 


30  SENATE  RULE  140. 

ment  intended  to  be  used  as  evidence  before 
the  Committee,  viz.,  the  marriage  certificate, 
letters,  etc.,  must  be  left  with  the  Clerk  of  the 
Committee. 


RULE  140. 

PAYMENT    OF    FEES. 

No  petition  for  a  bill  of  divorce  shall  be 
considered  by  the  Committee  unless  the  ap- 
plicant has  paid  into  the  hands  of  the  Clerk 
of  the  Senate  the  sum  of  two  hundred  dol- 
lars, towards  expenses  which  may  be  incurred 
during  the  proceedings  upon  the  petition  and 
the  bill,  and  also  the  sum  of  ten  dollars  to 
pay  for  translating  and  printing  600  copies 
of  the  bill  in  English  and  200  copies  in 
French.  The  translation  shall  be  made  by 
the  translators  of  the  Senate,  and  the  said 
sums  shall  be  subject  to  the  order  of  the 
Senate. 

NOTES. 

The  House  fees  on  a  Bill  of  Divorce 
amount  to  $210.00,  which  must  be  paid  to  the 
Clerk  of  the  Senate  before  the  petition  will 
be  considered  by  the  Committee.  If  the  ap- 
plicant is  too  poor  to  pay  the  fees  a  petition 
should  be  presented  on  his  behalf,  before 
the  presentation  of  the  petition  for  divorce, 


SENATE  RULE  142.'  31 

setting  out  the  particulars  of  the  intended  ap- 
plication for  divorce,  the  needy  circumstances 
of  the  petitioner  and  all  such  other  facts  as 
would  justify  the  House  in  allowing  the  peti- 
tioner to  proceed  in  forma  pauperis.  The 
petition  should  be  verified  by  statutory  declar- 
ation. 

By  Rule  114  the  fee  payable  on  any  pri- 
vate bill  is  paid  in  the  House  in  which  it  is  in- 
troduced. 


RULE  142. 

PROOF  OF  PUBLICATION  AND  OF  SERVICE — ORDER 
FOR  SUBSTITUTION AL  SERVICE — NON-COMPLI- 
ANCE WITH  RULES. 

The  Committee  shall  examine  the  notice 
of  application  to  Parliament,  the  petition,  the 
information  endorsed  upon  or  appended  to 
the  petition,  the  evidence  of  publication  of  the 
notice,  the  evidence  of  the  service  of  a  copy  of 
the  notice  and  of  a  copy  of  the  petition,  all 
other  papers  referred  with  the  petition,  and 
also  the  notice,  if  any,  given  by  the  respondent 
to  the  Clerk  of  the  Senate. 

2.  If  any  proof  is  found  by  the  Committee 
to  be  defective,  it  may  be  supplemented  by  sta- 
tutory declaration  to  be  laid  before  the  Com- 
mittee. 


32  SENATE  RULE  142. 

3.  If  the  circumstances  of  the  case  seem 
so  to  require,  the  Committee,  before  proceed- 
ing to  hearing  and  inquiry  as  hereinafter  re- 
quired, may  make  such  order  as  to  the  Commit- 
tee seems  requisite  and  just  for  effecting  sub- 
stitutional  service    by    advertisement,  regis- 
tered letter,  or  otherwise,  upon  both  or  either 
of  the  parties. 

4.  If  the  requirements  of  these  rules,  or 
of  any  order  made  thereunder  by  the  Com- 
mittee, have  not  been  complied  with  in  any 
material  respect,  the  Committee  shall  report 
thereon  to  the  Senate,  and  shall  not,  without 
further  order  from  the  Senate,  proceed  to  hear 
and  inquire  into  the  matters  set  forth  in  the 
petition. 

5.  If  the  requirements  of  these  rules  or  of 
any  order  made  thereunder  by  the  Committee, 
have  been  complied  with  in  all  material  re- 
spects, the  Committee  shall,  after  reasonable 
notice  to  the  parties,  proceed  with  all  reason- 
able despatch  to  hear  and  to  inquire  into  the 
matters  set  forth  in  the  petition  and  shall  take 
evidence  upon  oath  touching  the  right  of  the 
petitioner  to  the  relief  prayed  for. 

NOTES. 

In  the  case  of  Private  Bills,  other  than 
Divorce  Bills,  proof  of  publication  is  submit- 
ted to  the  Standing  Orders  Committee  of  the 


SENATE  RULE  134.  33 

Senate.  In  the  case  of  Divorce  Bills  the  suf- 
ficiency of  the  proof  of  publication  is  deter- 
mined by  the  Committee  on  Divorce. 

Notice  of  the  date  and  time  of  sitting  of 
the  Committee  is  given  by  posting  the  same  in 
the  lobby  of  the  Senate. 


vRULE  134. 

REPORTING    OF    EVIDENCE. 

The  Official  Reporters  of  the  Senate,  or 
one  of  them,  when  notified  by  the  Chairman, 
shall  be  in  attendance  at  each  sitting  of  the 
Committee,  and,  having  first  been  duly  sworn 
to  discharge  faithfully  such  duty,  shall  take 
down  in  shorthand  and  afterwards  extend  the 
evidence  of  witnesses  examined  before  the 
Committee,  which  evidence  shall  be  printed 
under  the  supervision  of  the  Clerk  of  the  Eng- 
lish Journals. 

NOTE. 

The  evidence  must  be  taken  in  shorthand 
by  one  of  the  official  reporters  of  the  Senate. 
It  is  afterwards  extended  and  printed  at  the 
Government  Printing  Bureau.  The  evidence 
is  not  signed  by  the  witnesses. 


B.D. — 3 


RULE  145. 

EVIDENCE  NECESSARY  TO  SUPPORT  BILL — DE- 
FENCES ADMISSIBLE  —  INTERVENTION  OF 
MINISTER  OF  JUSTICE. 

If  adultery  be  proved,  the  party  from 
whom  the  divorce  is  sought  may  nevertheless 
be  admitted  to  prove  connivance  at,  or  con- 
donation of  the  adultery,  collusion  in  the  pro- 
ceedings for  divorce,  or  adultery  on  the  part 
of  the  petitioner. 

Connivance  at,  or  condonation  of  the 
adultery,  or  collusion  in  the  proceedings  for 
divorce,  is  always  a  sufficient  ground  for  re- 
jecting a  Bill  of  Divorce,  and  shall  be  inquired 
into  by  the  Committee.  And  should  the  Com- 
mittee have  reason  to  suspect  connivance  or 
collusion,  and  in  their  opinion  it  is  desirable 
that  fuller  inquiry  should  be  made,  such 
opinion  and  the  reasons  therefor  shall  be  com- 
municated to  the  Minister  of  Justice,  that  he 
may  intervene  and  oppose  the  bill  should  the 
interest  of  public  justice  in  his  opinion  call  for 
such  intervention.  B.  812,  sq. 

NOTES. 

The  adultery  charged  must  have  been 
committed  by  one  of  the  consorts  since  the 
celebration  of  the  marriage  in  question.  It  is 
not  necessary  in  order  to  succeed  to  prove  the 
direct  fact  of  adultery,  or  even  a  fact  of  adul- 


SENATE  RULE  145.  35 

tery  as  to  time  and  place.  In  nearly  every  case 
the  fact  is  inferred  from  proof  of  circum- 
stances which  show  the  opportunity  for  the 
act,  and  which  lead  to  the  conclusion  that  it 
occurred. 

The  Committee  will  scrutinize  with  great 
care  a  case  where  only  a  single  witness  testifies 
to  the  fact  of  adultery,  and  especially  if  that 
witness  is  a  woman  of  loose  character  with 
whom  the  act  is  said  to  have  been  committed. 

The  evidence  of  the  husband  or  wife 
alone,  unless  corroborated  by  another  witness, 
or  by  strong  circumstantial  evidence,  and  par- 
ticularly where  the  fact  is  sought  to  be  proved 
by  admission,  is  not  sufficient. 

Proof  that  the  respondent  has  contracted 
a  venereal  disease,  not  from  the  petitioner,  is 
sufficient  evidence  of  adultery.  Venereal  dis- 
ease in  itself  is  uncertain  evidence  as  it  is  con- 
sistent with  the  husband's  adultery,  with  the 
wife 's  adultery  and  with  accidental  communi- 
cation of  the  disease.  In  Browning  v.  Brown- 
ing (1911),  p.  161,  it  was  held  that  it  is  suffi- 
cient for  a  wife  to  prove  that  she  was  infected 
by  the  husband  and  it  is  then  for  him  to  prove 
that  the  disease  was  communicated  in  such  cir- 
cumstances as  not  to  amount  to  legal  cruelty. 
Proof  that  the  respondent  is  suffering  from 
venereal  disease  must  be  given  by  medical  tes- 
timony ;  no  other  evidence  will  be  accepted  by 


36  SENATE  RULE  145. 

the  Committee.  Proof  that  the  respondent 
travelled  with  a  person  of  the  opposite  sex,  not 
the  petitioner,  and  that  they  registered  as  man 
and  wife  at  a  hotel  and  occupied  the  same 
room,  is  sufficient.  Proof  that  the  respondent 
visited  a  brothel  is  sufficient,  unless  it  be 
shown  absolutely  and  by  unimpeachable  evi- 
dence that  the  visit  was  innocent.  If  the  peti- 
tioner's  wife  gives  birth  to  a  child,  of  which 
in  point  of  time  the  petitioning  husband  could 
not  have  been  the  father,  that  also  is  sufficient. 

The  first  step  before  the  Committee  at  the 
hearing  is  to  prove  a  valid  marriage,  as  with- 
out a  valid  marriage  there  can  be  no  adultery. 
Proof  of  such  a  marriage  involves  proof  of  the 
identity  of  the  parties.  It  must  be  shown  by 
satisfactory  evidence  that  the  persons,  whose 
marriage  it  is  sought  to  dissolve,  are  the  per- 
sons between  whom  the  marriage  was  solem- 
nized. 

In  addition  to  the  evidence  of  the  peti- 
tioner as  to  the  fact  of  marriage  and  identity 
of  parties  it  is  usual  to  produce  and  file  with 
the  Committee  a  certificate  of  marriage, 
signed  by  the  officiating  Minister,  or  to  pro- 
duce and  prove  an  examined  copy  of  the  entry 
in  the  marriage  register,  or  to  file  a  certificate 
signed  by  the  Registrar-General,  where  the 
marriage  was  performed  in  any  of  the  pro- 
vinces of  Canada  having  such  an  officer. 
Where  it  is  intended  to  prove  a  marriage  by 


SENATE  RULE  145.  37 

a  certificate  of  marriage  signed  by  the  officiat- 
ing minister,  evidence  must  be  given  that  the 
signature  on  the  certificate  is  that  of  the  offi- 
ciating minister  and  that  such  minister  per- 
formed the  ceremony.  The  identity  of  the  par- 
ties should  be  established  by  a  witness  who  was 
present  at  the  marriage,  or  if  such  a  witness 
cannot  be  obtained  then  a  witness  who  knew 
the  parties  when  they  were  living  together  as 
man  and  wife.  Photographs  are  frequently 
used  as  a  means  of  proving  identity.  The  best 
and  most  direct  proof  possible  of  marriage  and 
identity  should  be  given.  If  a  case  should 
arise  where  the  production  of  a  certificate  is 
impossible  the  fact  of  marriage  may  be  proved 
by  the  evidence  of  witnesses  who  knew  the 
parties  and  know  that  for  a  considerable  time 
they  cohabited  as  man  and  wife,  as  such  evi- 
dence raises  a  presumption  of  lawful  mar- 
riage which  can  only  be  rebutted  by  the  most 
cogent  proof  to  the  contrary.  Reference  may 
be  made  to  Phipson  on  Evidence,  4th  Edition, 
p.  313,  et  seq.,  as  to  the  mode  of  proof  of  for- 
eign marriages. 

When  clear  proof  is  given  of  the  celebra- 
tion of  a  marriage,  followed  by  cohabitation, 
everything  necessary  to  the  validity  of  the 
marriage  will  be  presumed,  unless  evidence  to 
the  contrary  is  forthcoming.  It  is  not  neces- 
sary to  prove  the  license,  or  the  publication 
of  banns,  or  the  capacity  of  the  parties  to  en- 
ter into  the  contract. 


38  SENATE  RULE  145. 

Where  the  marriage  was  performed  in 
Ontario  a  certificate,  signed  by  the  Registrar- 
General,  is,  under  the  Vital  Statistics  Act,  c. 
49  of  R.  S.  0. 1914,  prima  facie  evidence  of  the 
facts  certified  to  be  recorded.  In  Quebec,  un- 
der the  Civil  Code,  the  churches  are  required 
to  keep  registers  in  duplicate  which  are  in 
charge  of  the  rectors,  priests,  or  ministers,  and 
in  which  acts  of  civil  status  are  to  be  entered, 
one  of  which  registers,  within  the  first  six 
weeks  of  each  year,  is  deposited  in  the  office 
of  the  Prothonotary  of  the  Superior  Court 
of  the  District,  or  in  the  office  of  the  Clerk  of 
the  Circuit  Court,  and  the  other  of  such  regis- 
ters remains  in  the  custody  of  the  priest,  or 
minister  who  kept  the  same.  Extracts  from 
such  registers,  given  by  either  depositary  and 
being  signed  and  certified  by  him,  are  authen- 
tic. 

In  Manitoba,  under  the  Vital  Statistics 
Act,  Revised  Statutes,  1913,  c.  203,  s.  28, 
every  person  who  solemnizes  a  marriage  is  re- 
quired to  report  the  same  to  the  Division 
Registrar  within  fifteen  days  thereafter.  If 
default  is  made  in  giving  the  notice  required 
by  section  28  the  division  registrar  is  author- 
ized by  section  29  to  register  the  marriage  at 
any  time  within  12  months  after 'the  perform- 
ance of  the  ceremony,  if  furnished  with  the 
necessary  information,  but  thereafter  regis- 
tration can  only  be  made  by  the  Minister  in 


SENATE  RULE  145.  39 

charge  of  the  Department.  By  section  53  of 
the  Act  the  registers  kept  by  the  Roman  Catho- 
lic, Anglican,  Presbyterian,  Methodist  or 
other  clergy  in  the  Province,  or  in  the  terri- 
tory now  comprising  the  Province  prior  to  the 
passing  of  Chapter  8  of  the  Statutes  of  1881, 
and  which  are  or  may  be  deposited  with  the 
Minister,  are  declared  to  be  authentic,  and 
copies  of  registers,  authenticated  under  the 
signature  of  the  Minister  of  the  Department, 
are  declared  to  be  competent  evidence  in  all 
cases  in  which  the  original  records  could  be 
evidence. 

In  Saskatchewan,  under  the  Vital  Statis- 
tics Act,  Revised  Statutes,  1909,  c.  21,  s.  11, 
every  clergyman,  minister  or  other  person, 
authorized  by  law  to  celebrate  marriage,  is 
required  to  make  a  report  to  the  Division  Re- 
gistrar of  every  marriage  which  he  celebrates 
within  one  month  after  celebration,  and  by 
section  20  such  Division  Registrar  is  required 
to  forward  the  returns  to  the  Department. 
By  section  20,  sub.-sec.  3,  extracts  from  such 
returns,  certified  by  the  Minister  of  the  De- 
partment, are  declared  to  be  evidence  of  the 
entry  and  prima  facie  evidence  of  the  facts 
therein  stated. 

In  Alberta,  the  Vital  Statistics  Act,  c.  13 
of  the  Statutes  of  1907,  contains  in  sections  11, 
17  and  30  provisions  similar  to  those  in  the 
Vital  Statistics  Act  of  Saskatchewan. 


40  SENATE  RULE  145. 

In  the  North- West  Territories,  after  the 
passing  of  Ordinance  No.  9  of  1878,  which  be- 
came law  on  the  2nd  of  August,  1878,  mar- 
riages could  be  validly  celebrated  by  Justices 
of  the  Peace,  as  well  as  by  ministers  and 
clergymen  of  every  religious  denomination. 
By  section  10  of  the  Ordinance,  the  person 
solemnizing  the  marriage  was  to  keep  dupli- 
cate certificates  in  a  prescribed  form,  one  of 
which  he  was  required  to  transmit  to  the  Re- 
gistrar of  Deeds  for  the  Territories,  who,  by 
section  12,  was  required  to  furnish  a  copy  of 
the  record  of  any  certificate  of  marriage, 
which  copy,  certified  by  the  Registrar,  is 
prima  facie  evidence  of  the  marriage  named 
therein. 

The  above  Ordinance  was  repealed,  on  the 
10th  of  June,  1881,  by  Ordinance  No.  7  of  1881, 
by  which  authority  was  given  to  Commission- 
ers, appointed  for  that  purpose,  to  celebrate 
marriages,  as  well  as  ministers  and  clergymen. 
Under  this  Ordinance  the  returns  are  made  to 
the  General  Registrar  of  Deeds  for  the  North- 
West  Territories,  whose  certificate  is  prima 
facie  evidence  of  the  marriage. 

By  the  Revised  Ordinances  of  1888,  No.  6, 
registration  divisions  were  established,  and 
every  person,  authorized  by  law  to  celebrate 
marriages,  was  required  to  make  returns  to 
the  Registrar  of  the  Division.  By  section  5 
of  the  Ordinance,  the  Division  Registrar  was 


SENATE  RULE  145.  4! 

required  to  make  returns  to  the  Registrar 
General,  whose  certificate  is  declared,  by  sec- 
tion 21,  to  be  prima  facie  evidence  of  the  facts 
therein  stated.  By  Ordinance  No.  7  of  1889 
the  Division  Registrars  are  required  to  keep 
duplicate  records  and  certificates  given  by 
such  Registrars  are  declared  to  be  prima  facie 
evidence  of  the  facts  stated  therein. 

The  Vital  Statistics  Ordinance  of  1897, 
being  No.  34,  contains  provisions  similar  to 
those  of  Vital  Statistics  Ordinance  which  ap- 
pears at  page  1245  in  the  Revised  Ordinances 
of  1905.  This  Act  will  also  be  found  as  Chap- 
ter 14  of  the  Consolidated  Ordinances  of  the 
North- West  Territories  published  in  1907. 

By  Ordinance  37  of  1904  the  power  to 
celebrate  marriage  was  extended  to  Commis- 
sioners and  staff  officers  of  the  Salvation 
Army. 

Proof  should  also  be  given  that  the  hus- 
band and  consequently  the  wife,  were  domi- 
ciled in  Canada  when  the  proceedings  were 
commenced.  If  the  wife  is  petitioning  and 
has  been  deserted  by  her  husband,  who  has 
gone  to  a  foreign  country,  and  the  parties 
were  domiciled  in  Canada  at  the  time  of  de- 
sertion and  the  wife  is  so  domiciled  when  she 
commences  proceedings,  it  is  presumed,  unless 
evidence  to  the  contrary  is  offered,  that  the 
husband  has  not  gone  abroad  with  the  inten- 
tion of  acquiring  a  fresh  domicile.  Such  domi- 
cile having  been  established,  Parliament  has 


42    "  SENATE  RULE  145. 

jurisdiction  to  decree  divorce  no  matter  when 
the  marriage  was  contracted,  or  where  the 
misconduct  took  place,  and  whether  the  par- 
ties are  British  subjects  or  not.  Residence 
merely  in  Canada,  short  of  domicile,  is  not 
sufficient  to  give  jurisdiction. 

It  is  well  settled  in  the  American  Courts 
that  a  wife  has  power  for  the  purpose  of 
divorce  to  obtain  a  domicile  separate  from 
that  of  her  husband.  Such  is  not  the  law  in 
Canada,  although  so  eminent  a  Judge  as  Sir 
Robert  Phillimore  expressed  his  opinion  in 
Le  Sueur  v.  Le  Sueur,  I.  P.  D.  139  (1876),  that 
after  desertion  by  the  husband  the  deserted 
wife  could  acquire  a  domicile  of  her  own.  It 
must  also  be  remembered  that,  in  the  Harris 
Case  (1845),  although  the  Bill  was  passed,  it 
was  disallowed  by  Her  Majesty  because 
neither  of  the  parties  was  domiciled  in  Can- 
ada at  the  date  of  the  passing  of  the  Bill. 

In  Le  Mesurier  v.  Le  Mesurier  (1895),  A. 
C.  517,  the  Judicial  Committee  of  the  Privy 
Council  held,  that  the  only  true  test  of  juris- 
diction to  decree  divorce  according  to  inter- 
national law  is  the  domicile  for  the  time  being 
of  the  consorts.  It  is  consequently  of  the  ut- 
most importance  in  considering  whether  or  not 
Parliament  has  jurisdiction  in  any  particular 
case  to  have  a  clear  conception  of  the  exact 
meaning  of  the  word  "  domicile." 


SENATE  RULE  145.  43 

The  following  extract  from  Professor 
Dicey 's  well  known  work  on  The  Conflict  of 
Laws  will  be  found  of  assistance  in  determin- 
ing whether  or  not  the  domicile  of  the  intend- 
ing applicant  is  such  as  to  give  Parliament 
jurisdiction. 

"  Domicile  "  means  the  country  Which 
.  .  .  is  considered  by  law  to  be  a  person's 
permanent  home. 

"  Independent  person  "  means  a  person 
who  as  regards  his  domicile  is  not  legally  de- 
pendent upon  the  will  of  any.  other  person. 

"  Dependent  person  "  means  any  person 
who  is  not  an  independent  person  as  herein, 
before  defined  and  includes, 

(a)  A  minor, 

(&)  A  married  woman. 

Rule  1.  The  domicile  of  any  person  is,  in 
general,  the  place  or  country  which  is,  in  fact, 
his  permanent  home,  but  is  in  some  cases  the 
place  or  country  which,  whether  it  be  in  fact 
his  home  or  not,  is  determined  to  be  his  home 
by  a  rule  of  law. 

Rule  2.  No  person  can  at  any  time  be 
without  a  domicile. 

Rule  3.  Subject  to  the  exception  herein- 
after mentioned,  no  person  can  have  at  the 
same  time  more  than  one  domicile. 


44  SENATE  RULE  145. 

Exception.  A  person  within  the  opera- 
tion of  the  Domicile  Act,  1861,  24  and  25  Viet., 
c.  121,  may  possibly  have  one  domicile  for  the 
purpose  of  testate  or  intestate  succession  and 
another  domicile  for  all  other  purposes. 

Rule  4.  A  domicile  once  acquired  is  re- 
tained until  it  is  changed. 

(a)  In  the  case  of  an  independent  person, 
by  his  own  act. 

(&)  In  the  case  of  a  dependent  person,  by 
the  act  of  some  one  on  whom  he  or  she  is  de- 
pendent. 

Rule  5.  Every  independent  person  has  at 
any  given  moment  either 

(a)  The  domicile  received  by  him  at  his 
birth  (which  domicile  is  hereinafter  called 
the  domicile  of  origin),  or 

(&)  A  domicile  (not  being  the  same  as  his 
domicile  of  origin)  acquired  or  retained  by 
him  while  independent  by  his  own  act 
(which  domicile  is  hereinafter  called  a 
domicile  of  choice). 

Rule  6.  Every  person  receives  at  (or  as 
from)  birth  a  domicile  of  origin. 

(a)  In  the  case  of  a  legitimate  child  born 
during  his  father's  lifetime,  the  domicile  of 
origin  of  the  child  is  the  domicile  of  the 
father  at  the  time  of  the  child's  birth. 


SENATE  RULE  145.  45 

In  the  case  of  an  illegitimate  or  pos- 
thumous child,  the  domicile  of  origin  is  the 
domicile  of  the  mother  at  the  time  of  birth. 

(c)  In  the  case  of  a  foundling,  the  domi- 
cile of  origin  is  the  country  where  he  was 
born  or  found. 

(d)  In  the  case  of  a  legitimated  person, 
the  domicile  which  his  father  had  at  the 
time  of  such  person's  birth  becomes  and  is 
considered  to  be  the  domicile  of  origin  of 
such  person. 

Rule  7.  Every  independent  person  can 
acquire  a  domicile  of  choice,  by  the  combina- 
tion of  residence  (factum)  and  intention  of 
permanent  or  indefinite  residence  (animus 
manendi)  but  not  otherwise. 

Rule  8.  (a)  The  domicile  of  origin  is  re- 
tained until  a  domicile  of  choice  is  in  fact  ac- 
quired. 

(&)  A  domicile  of  choice  is  retained  until 
it  is  abandoned,  whereupon  either, 

(1)  A  new  domicile  of  choice  is  acquired, 
or 

(2)  The  domicile  of  origin  is  resumed. 

Rule  9.  The  domicile  of  every  dependent 
person  is  the  same  as,  and  changes  (if  at  all) 
with  the  domicile  of  the  person  on  whom  he  is, 
as  regards  his  domicile,  legally  dependent. 


46  SENATE  RULE  145. 

Sub-Rule  1.  Subject  to  the  exceptions 
hereinafter  mentioned,  the  domicile  of  a 
minor  is,  during  minority,  determined  as  fol- 
lows:— 

(1)  The  domicile  of  a  legitimate  or  legi- 
timated minor  is  during  the  lifetime  of  his 
father  the  same  as,  and  changes  with,  the 
domicile  of  his  father. 

(2)  The  domicile  of  a  minor,  without  liv- 
ing parents,  or   of   an   illegitimate  minor, 
without  a  living  mother,  is  the  same  as,  and 
changes  with,  the  domicile  of  his  guardian, 
or  may  be  changed  by  his  guardian. 

Exception  '1  to  Sub-Rule.  The  domicile 
of  a  minor  is  not  changed  by  the  mere  re- 
marriage of  his  mother. 

Exception  2  to  Sub-Rule.  The  change  of 
a  minor's  home  by  a  mother  or  guardian 
does  not,  if  made  with  a  fraudulent  purpose, 
change  the  minor's  domicile. 

Sub-Rule  2.  The  domicile  of  a  married 
woman  is  during  coverture  the  same  as,  and 
changes  with,  the  domicile  of  her  husband. 

Rule  10.  A  domicile  cannot  be  acquired 
by  a  dependent  person  through  his  own  act. 

Sub-Rule  8.  Where  there  is  no  person 
capable  of  changing  a  minor's  domicile,  he  re- 
tains, until  the  termination  of  his  minority, 
the  last  domicile  which  he  has  received. 


SENATE  RULE  145.  47 

Rule  11.  The  last  domicile  which  a  per- 
son receives  whilst  he  is  a  dependent  person, 
continues  on  his  becoming  an  independent  per- 
son, unchanged  until  it  is  changed  by  his  own 
act. 

Sub-Rule  1.  A  person  on  attaining  his 
majority  retains  the  last  domicile  which  he 
had  during  his  minority  until  he  changes  it. 

Sub-Rule  2.  A  widow  retains  her  late 
husband's  last  domicile  until  she  changes  it. 

Sub-Rule  3.  A  divorced  woman  retains 
the  domicile  which  she  had  immediately  be- 
fore or  at  the  moment  of  divorce,  until  she 
changes  it. 

Rule  12.  The  domicile  of  a  person  can  al- 
ways be  ascertained  by  means  of  either, 

(1)  A  legal  presumption, 

The  known  facts  of  the  case. 


Rule  13.  A  person's  presence  in  a  coun- 
try is  presumptive  evidence  of  domicile. 

Rule  14.  When  a  person  is  known  to  have 
had  a  domicile  in  a  given  country  he  is  pre- 
sumed, in  the  absence  of  proof  of  a  change,  to 
retain  such  domicile. 

Rule  15.  Any  circumstance  may  be  evi- 
dence of  domicile  which  is  evidence  either  of 
a  person's  residence  (factum)  or  of  his  inten- 
tion to  reside  permanently  (animus  manendi) 
within  a  particular  country. 


48  SENATE  RULE  145. 

Rule  16.  Expressions  of  intention  to  re- 
side permanently  in  a  country  are  evidence  of 
such  intention,  and  in  so  far,  evidence  of  domi- 
cile. 

Rule  17.  Residence  in  a  country  is  prima 
facie  evidence  of  the  intention  to  reside  there 
permanently  (animus  manendi)  and,  in  so  far 
evidence  of  domicile. 

Rule  18.  Residence  in  a  country  is  not 
even  prima  facie  evidence  of  domicile  when 
the  nature  of  the  residence  either  is  inconsist- 
ent with,  or  rebuts  the  presumption  of  the  ex- 
istence of,  an  intention  to  reside  there  perma- 
nently (animus  manendi). 

Persons  whose  employment  rebuts  the 
presumption  of  residence  are  said  by  Profes- 
sor Dicey  to  be, 

1.  Prisoners. 

2.  Convicts, 

3.  Exiles  or  refugees, 

4.  Lunatics, 

5.  Invalids  residing  abroad  on  account 
of  health, 

6.  Officials  generally, 

7.  Ambassadors, 

8.  Consuls, 

9.  Persons  in  military  or  naval  service, 

10.  Persons  in  Indian  service, 

11.  Ecclesiastics, 


SENATE  RULE  145.  49 

12.  Servants, 

13.  Students. 

It  is  apparent  therefore  that  there  are 
three  kinds  of  domicile, 

1.  Domicile  of  origin, 

2.  Domicile  by  law, 

3.  Domicile  of  choice. 

Lord  Wensleydale  has  defined  Domicile 
as  "  habitation  in  a  place  with  the  intention  of 
remaining  there  forever,  unless  some  circum- 
stances should  occur  to  alter  that  intention." 

Domicile  of  origin  is  not  the  place  where 
a  person  happens  to  be  born ;  but  the  home  of 
his  parents,  where  they  are  known. 

Domicile  by  law  is  that  domicile  which 
the  law  assigns  to  those  who  are  dependent 
upon  others. 

The  husband's  actual,  and  the  wife's 
legal,  domicile  are  the  same,  no  matter  where 
the  wife  may  be  personally  living,  and  during 
the  marriage  the  wife  cannot  acquire  a  sep- 
arate domicile  for  herself. 

The  domicile  of  a  child  is  that  of  his 
father  while  he  is  an  infant.  Upon  the  death 
of  the  father  a  domicile  acquired  by  the  widow 
becomes  that  of  the  infant. 

B.D. 4 


50  SENATE  RULE  145. 

Domicile  of  choice  arises  where  a  person, 
having  the  power  to  change  his  domicile,  vol- 
untarily abandons  his  existing  domicile  and 
settles  in  another  country  with  the  intention 
of  permanently  residing  there. 

The  burden  of  proof  is  on  the  party  set- 
ting up  the  abandonment  of  the  domicile  of 
origin,  the  presumption  of  law  being  against 
such  intention.  The  acquisition  of  a  new  domi- 
cile is  a  question  of  fact  not  of  law. 

Rule  48.  The  Court  has  jurisdiction  to 
entertain  proceedings  for  the  dissolution  of 
the  marriage  of  any  parties  domiciled  in  Eng- 
land at  the  commencement  of  the  proceedings. 

This  jurisdiction  is  not  affected  by,— 

1.  The  residence  of  the  parties,  or 

2.  The  allegiance  of  the  parties,  or 

3.  The  domicile  of  the  parties  at  the  time 
of  the  marriage  or 

4.  The  place  of  the  marriage,  or 

5.  The  place  where  the  offence  in  respect 
of  which  the  divorce  is  sought  is  committed. 

Rule  49.  Subject  to  the  possible  excep- 
tion hereinafter  mentioned  the  Court;  has  no 
jurisdiction  to  entertain  proceedings  for  the 
dissolution  of  the  marriage  of  any  parties  not 
domiciled  in  England  at  the  commencement  of 
the  proceedings.  Exception, 


SENATE  RULE  145.  51 

In  the  following  circumstances,  that  is  to 
say  — 

1.  Where  a  husband  has, 
(a)  Deserted  his  wife,  or 

(6)  So  conducted  himself  towards  her 
that  she  is  justified  in  living  apart  from 
him,  and 

2.  The  parties  have  up  to  the  time  of  such 
desertion  or  justification   been    domiciled  in 
England,  and 

3.  The  husband  has  after  such  ,time  ac- 
quired a  domicile  in  a  foreign  country  but  the 
wife  has  continued  to  reside  in  England. 

The  Court  (semble)  has  on  the  petition 
of  the  wife  jurisdiction  to  grant  a  divorce. 

Rule  86.  The  Courts  of  a  foreign  country 
have  jurisdiction  to  dissolve  a  marriage  of  any 
parties  domiciled  in  such  foreign  country  at 
the  commencement  of  the  proceedings  for 
divorce. 

This  rule  applies  to, — 

1.  An  English  marriage, 

2.  A  foreign  marriage. 

(a)  A  foreign  divorce  is  not  valid  which 
is  obtained  by  the  collusion  or  fraud  of  the 
parties. 


52  SENATE  RULE  145. 


A  foreign  divorce  is  not  valid  if  the 
proceedings  are  conducted  in  anyway  con- 
trary to  natural  justice. 

Rule  87.  Subject  to  the  possible  excep- 
tion hereinafter  mentioned,  the  Court  of  a 
foreign  country  has  no  jurisdiction  to  dissolve 
the  marriage  of  parties  not  domiciled  in  such 
foreign  country  at  the  commencement  of  the 
proceedings  for  divorce. 

Exception  : 

The  Courts  of  a  foreign  country  where 
the  parties  to  a  marriage  are  not  domiciled. 
have  jurisdiction  to  dissolve  their  marriage, 
if  the  divorce  granted  by  such  Courts  would 
be  held  valid  by  the  Courts  of  the  country 
where,  at  the  time  of  the  proceedings  for  di- 
vorce, the  parties  are  domiciled. 

The  next  step  before  the  Committee  is  to 
prove  the  adultery  of  the  respondent,  or  such 
other  ground  for  relief  as  may  have  been  set 
forth  in  the  petition.  Evidence  should  also  be 
given  as  to  the  terms  upon  which  the  parties 
lived  together  while  cohabitation  continued, 
and  if  the  adultery  complained  of  occurred  af- 
ter separation,  it  should  be  shown  that  the 
separation  was  not  due  to  the  fault  of  the  peti- 
tioner. The  petitioner  should  also  specifically 
deny  condonation,  collusion  and  connivance. 

By  way  of  defence  the  respondent  may,— 

1.  Deny  the  facts  alleged  in  the  petition. 
The  burden  of  proof  is  on  the  petitioner,  who 


SENATE  RULE  145. 


53 


must  establish,  by  the  evidence  of  himself  and 
his  witnesses,  all  the  facts  necessary  to  entitle 
him  to  relief:  or  allege 

2.  Condonation: — which  is  complete  for- 
giveness of  all  such  previous  misconduct  as  is 
known  or  believed  to  have  occurred  subject 
to  the  express  or  implied  condition  that  no 
further  matrimonial  offence  shall  occur.     If, 
after  condonation,  there  should  be  a  repetition 
of  the  offence,  such  repetition  nullifies  the  con- 
donation, and  the  previous  cause  of  complaint 
revives. 

Condonation  may  be  the  result  of  express 
agreement,  or  it  may  be  implied  from  cohabi- 
tation after  knowledge  of  the  previous  of- 
fence, but  resumption  of  sexual  intercourse  is 
not  absolutely  conclusive  of  condonation  by  a 
wife.  It  is  a  question  of  fact  for  the  Commit- 
tee. Forgiveness  of  marital  infidelity  is  not 
to  be  presumed. 

3.  Collusion: — This  may  be  defined  as  a 
conspiracy  between  the  husband  and  wife  to 
obtain  a  divorce  by  suppression  of  the  facts  or 
by  false  manufactured  testimony.     It  is  the 
result  of  agreement,  between  the  petitioner 
and  the  respondent,  by  which  the  respondent 
is  to  commit  or  seem  to  commit  the  offence  to 
enable  the  petitioner  to  procure  the  divorce, 
or  under  which  no  defence  is  to  be  offered  to 
the  petition.    Parties  to  divorce  proceedings 


54  SENATE  RULE  145. 

should  remain  at  arm's  length.  Communica- 
tions between  them,  with  a  view  to  facilitating 
the  application,  give  rise  to  a  suspicion  of  col- 
lusion which  may  be  difficult  to  rebut. 

4.  Connivance: — This  differs  from  con- 
donation in  that  it  precedes  the  commission  of 
the  offence  which  is  complained  of,  while  con- 
donation can  only  occur  after  the  offence  has 
happened.    Connivance  is  the  consent  or  in- 
difference of  the  complainant  to  the  miscon- 
duct of  which  he  complains  as  a  cause   for 
divorce.    Where  adultery  is  committed  by  one 
of  the  consorts  by  collusion  with  the  other, 
there  is  necessarily  also  connivance. 

5.  Adultery  on  the  part  of  the  petitioner : 
In  cases  not  provided  for  in  the  rules  the  prin- 
ciples upon  which  the  Imperial  Parliament 
proceeds  in  dissolving  marriage  are  to  be  ap- 
plied to  divorce  proceedings  before  the  Com- 
mittee (Rule  152) .    It  was  always  the  practice 
in  the  House  of  Lords  to  reject  evidence  of 
the  petitioner's  adultery  where  it  occurred 
after  the  commission  of  the  adultery  of  whicli 
he  complained.    Where,  however,  the  adultery 
of  the  petitioner  occurred  before  that  of  the 
respondent  the  House  of  Lords  always  refused 
to  pass  the  Bill. 

6.  Void  Marriage : — Since  no  divorce  can 
be  granted  where  no  valid  marriage  relation 
exists  it  is,  of  course,  a  complete  defence  that 
the  marriage  is  for  some  reason  void,  as  that 


SENATE  RULE  145.  55 

at  the  time  the  marriage  was  celebrated  one 
of  the  parties  was  already  married,  and  had 
a  husband  or  wife  living,  and  that  such  prior 
marriage  had  not  been  dissolved. 

7.  No  Marriage: — It  is  a  good  defence 
that  the  parties  were  not  married,  or  that 
their  cohabitation  was  illicit  when  commenced 
and  continued  to  be  so. 

8.  Insanity  when  the  adultery  was  com- 
mitted, has  been  held  to  be  a  good  defence  in 
the  United  States,  because  the  offence  is  not 
committed  voluntarily,  and  the  offender  was 
incapable  of  distinguishing  between  right  and 
wrong,  or  of  understanding  the  nature  of  the 
act.    This  would  probably  be  considered  a  suf- 
ficient answer  to  a  petition  by  the  Committee. 

9.  The  granting  or  rejecting  of  a  petition 
being  discretionary  with  Parliament  it  is  com- 
petent for  the  respondent  to  set  up  by  way  of 
defence  the  delay  of  the  petitioner  in  institut- 
ing proceedings,  as  from  such  delay  both  con- 
nivance and  condonation   may   be   inferred. 
Want  of  means  has  always  been  considered  by 
Parliament  a  sufficient  excuse  for  delay  in 
presenting  a  bill  for  divorce.    The  respondent 
may  also  give  evidence  of  cruelty,  of  wilful 
and  inexcusable  desertion,  of  separation,    of 
neglect,  or  of  conduct  on  the  part  of  the  peti- 
tioner conducing  to  the  adultery  complained 
of. 


56  SENATE  RULE  143. 

On  this  subject  Sir  Cresswill  Cresswill 
says:  "  It  must  not  be  supposed  that  a  hus- 
band can  neglect  and  throw  aside  his  wife, 
and  afterwards  if  she  is  unfaithful  to  him, 
obtain  a  divorce  on  account  of  her  infidelity." 


EULE  143. 

REPORT  BY  COMMITTEE— DRAFT  BILL— MINORITY 
REPORT. 

After  such  hearing  and  inquiry  the  Com- 
mittee shall  report  to  the  Senate,  stating 
whether  the  requirements  of  these  rules  have 
been  complied  with  in  all  material  respects; 
and,  if  it  shall  have  been  then  found  that  any 
such  requirement  has  not  been  so  complied 
with,  stating  in  what  respect  there  has  been 
default,  and  also  stating  the  conclusions  ar- 
rived at  and  the  action  recommended  by  the 
Committee. 

2.  The  report  shall  be  accompanied  by  the 
testimony  of  the  witnesses  examined,  and  by 
all  documents,  papers  and  instruments  refer- 
red to  the  Committee  by  the  Senate  or  received 
in  evidence  by  the  Committee. 

3.  If  the  report  recommends  the  granting 
of  relief  to  the  petitioner  it  shall  also  be  ac- 
companied by  a  draft  approved  by  the  Com- 
mittee, of  a  Bill  to  effect  such  relief.    - 


SENATE  RULE  143.  57 

4.  The  minority  may  bring  in  a  report 
stating  the  grounds  upon  which  they  dissent 
from  the  report  of  the  Committee.  B.  809, 
814,  sq. 

NOTES. 

After  the  taking  of  the  evidence  the  Com- 
mittee considers  the  same  behind  closed  doors. 
If  it  is  decided  to  report  the  granting  of  relief 
the  necessary  Bill  is  prepared  by  the  Law 
Clerk.  In  the  following  cases  the  preambles 
have  contained  no  direct  and  specific  charge 
of  adultery  against  the  respondent.  The  facts 
leading  to  an  inference  of  adultery  have  been 
stated,  but  owing  to  the  peculiar  circum- 
stances of  each  case  Parliament  refrained 
from  stigmatizing,  in  so  many  words,  the  con- 
duct of  the  respondent  as  adulterous,  viz. :  The 
Lowndes  Case,  Statutes  of  1909,  p.  215;  The 
Ridout  Case,  Statutes  of  1909,  p.  293;  The 
Hutcheon  Case,  Statutes  of  1914,  p.  367. 

If  the  Committee  should  report  against 
the  Bill,  or  if  for  any  other  reason  it  is  not 
prosecuted  to  a  conclusion,  the  petitioner  is  en- 
titled to  a  return  of  whatever  remains  of  the 
deposit  after  payment  thereout  of  all  the 
necessary  expenses. 

The  Bill  is  composed  of  the  preamble, 
which  sets  forth  the  facts  upon  which  Parlia- 
ment bases  the  relief  granted,  and  two  enact- 
ing clauses.  The  first  of  these  declares  that 


58  SENATE  RULE  143. 

the  marriage  in  question  is  thereby  dissolved 
and  shall  be  thenceforth  null  and  void  to  all 
intents  and  purposes.  The  effect  of  this  is  to 
restore  the  parties  to  the  status  which  they 
held  before  the  solemnization  of  the  marriage. 

The  second  clause  enacts  that  the  peti- 
tioner may  at  any  time  thereafter  marry  any 
woman  whom  he  might  lawfully  marry  if  the 
dissolved  marriage  had  never  been  solemnized. 
Parliament  has  never  made  a  similar  declara- 
tion with  respect  to  the  rights  of  the  person 
from  whom  the  divorce  is  obtained,  but  as  the 
marriage  tie  is  absolutely  dissolved  there  can 
be  no  doubt  that  each  of  the  parties  can  law- 
fully marry  again. 

Where  the  circumstances  warrant  it,  Par- 
liament occasionally  grants  other  relief.  For 
instance  in  the  Whiteaves  Case,  Statutes  of 
1869,  p.  xv.,  the  marriage  contract  was  de- 
clared void.  In  the  Holliwell  Case,  Statutes 
of  1878,  p.  viii.,  the  husband  was  debarred 
from  any  interest  in  his  wife 's  estate.  In  the 
Riddell  Case,  Statutes  of  1887,  p.  336,  The 
Lyon  Case,  Statutes  of  1878,  p.  v.,  the  Tudor 
Case,  Statutes  of  1888,  p.  301,  the  Morrison 
Case,  Statutes  of  1888,  p.  299,  and  the  Harri- 
son Case,  Statutes  of  1892,  p.  140,  the  petition- 
ing wives  were  given  the  sole  custody  of  the 
infant  children. 

In  the  Campbell  Case,  Statutes  of  1879,  p. 
91,  which  was  based  on  desertion,  cruelty  and 


SENATE  RULE  143.  59 

non-support  and  was  an  application  for  separ- 
ation or  divorce  a  mensa  et  thoro,  the  Bill  pro- 
vided for  separation,  maintenance  of  the  wife 
and  children  by  the  husband,  the  custody  of 
one  of  the  children  by  the  wife,  and  granted 
authority  to  the  court  to  enforce  the  pro- 
visions of  the  Act.  In  the  Pitblado  Case, 
Statutes  of  1905,  p.  465,  Isaac  Pitblado,  the 
petitioner,  was  awarded  the  custody  of  his 
children. 

The  view  at  present  held  is  that  the  ques- 
tion of  custody  of  children  is  one  falling 
within  the  competence  of  the  Courts  of  the 
Provinces,  and  that  the  making  of  such  a  pro- 
vision would  be  an  interference  with  civil 
rights,  which,  under  the  constitution,  are  un- 
der the  sole  control  of  the  Provincial  Legisla- 
tures. 

Notwithstanding  this  view,  cases  turning 
on  special  circumstances,  may  arise  in  which 
such  relief  will  still  be  granted. 

In  the  Campbell  Case,  in  which  the  ques- 
tion of  the  jurisdiction  of  Parliament  to  deal 
with  the  custody  of  children  was  the  subject 
of  much  debate  both  in  the  Senate  and  the 
House  of  Commons,  the  contrary  view  pre- 
vailed, maintenance  and  the  custody  of  child- 
ren being  considered  as  matters  incident  to 
or  growing  out  of  the  contract  of  marriage, 
and  so  within  the  jurisdiction  conferred  on 


60  SENATE  RULE  135. 

Parliament  under  the  authority  which  it  has 
to  deal  with  marriage  and  divorce. 

Unless  it  should  be  otherwise  provided  by 
the  Bill,  the  effect  of  divorce  is  to  restore  the 
parties  with  respect  to  their  property  to  the 
position  which  they  would  have  occupied  had 
the  marriage  never  been  solemnized,  the  wife 
ceases  to  have  any  interest  in  her  husband's 
estate  and  retains  her  own  estate  free  from 
any  claim  by  him. 


RULE  135. 

PRINTING  OF  EVIDENCE. 

Evidence  taken  before  the  Committee 
shall  be  printed  apart  from  the  Minutes  of 
Proceedings  of  the  Senate,  and  only  in  suf- 
ficient numbers  for  the  use  of  Senators  and 
Members  of  the  House  of  Commons,  that  is 
to  say,  one  copy  for  distribution  to  each  Sen- 
ator or  Member,  ten  copies  for  the  parties 
and  their  counsel,  and  twenty-five  copies  to 
be  kept  by  the  Clerk  of  the  Senate  for  pur- 
poses of  record  and  reference. 

NOTE. 

The  object  of  this  rule  is  to  prevent  the 
indiscriminate  distribution  of  evidence,  which 
is  often  of  an  extremely  lecherous  nature. 


RULE  144. 

INTRODUCTION    OF    BILL — FIRST    READING. 

Upon  the  adoption  of  the  report  of  the 
Committee,  the  Bill  may  be  presented  and 
read  a  first  time;  and  thereafter  no  further 
reference  of  the  Bill  to  the  Committee  shall 
be  necessary,  unless  so  ordered  by  the  Senate. 

NOTES. 

The  Bill  should  be  introduced  by  the  Sen- 
ator who  presented  the  Petition,  and  having 
been  read  a  first  time,  the  Senator  in  charge 
then  moves  that  the  Bill  be  placed  on  the 
order  paper  and  be  read  a  second  time  on  a 
date  which  is  then  fixed. 

On  the  day  so  fixed  the  Senator  in  charge 
moves  that  the  Bill  be  read  a  second  time,  and 
be  placed  on  the  order  paper  for  a  third  read- 
ing on  a  named  day. 


RULE  146. 

COMMITTEE    MAY    HEAR   COUNSEL. 

The  petitioner,  the  respondent  and,  if  the 
Committee  sees  fit,  any  other  person  affected 
by  the  proceedings  had,  may  be  heard  before 
the  Committee  in  person  or  by  counsel  learned 


62  SENATE  RULE  146. 

in  the  law  of  the  bar  of  any  province  in  Can- 
ada.   B.  813. 

NOTES. 

Under  this  rule  counsel  only  are  entitled 
to  appear  before  the  Committee.  The  proceed- 
ings being  judicial,  counsel  appear  in  their 
robes.  It  is  not  customary  to  hear  more  than 
two  counsel  for  each  party. 

The  following  extract  is  taken  from  Gem- 
mill  on  Divorce : 

"  Parliamentary  Solicitors. — The  services 
of  a  Parliamentary  Solicitor  at  Ottawa  are 
indispensable  for  the  safe  conduct  of  a  bill  of 
divorce.  He  should  be  in  attendance  at  the 
several  meetings  of  the  Select  Committee  at 
which  steps  in  the  case  are  taken,— first  seeing 
that  all  papers  or  documents  leading  to  proofs, 
and  the  petition  and  the  bill  are  in  proper 
form.  An  application  of  a  simple  character 
occupies  fully  six  weeks  in  passing  both 
Houses— during  which  period  it  receives  three 
readings  in  each  House,  and  is  before  Commit- 
tees at  least  half  a  dozen  times ;  on  any  one  of 
these  occasions  important  questions  touching 
the  case  may  unexpectedly  present  themselves, 
and  end  in  the  premature  death  of  the  Bill. 
It  will,  therefore,  be  readily  seen  that  a  local 
Solicitor  should  be  authorized  to  keep  a  gen- 
eral supervision  over  the  case,  and  push  it  on 


SENATE  RULE  147.  63 

from  one  stage  to  another.  Neither  the  Sen- 
ator or  Member  in  charge  of  the  Bill,  nor  the 
officers  of  Parliament,  are  under  any  obliga- 
tion to  speed  it  or  to  bring  it  to  a  successful  is- 
sue. As  in  Courts  of  Law,  a  Solicitor  experi- 
enced in  Parliamentary  practice,  can  materi- 
ally assist  the  Committee  in  securing  compli- 
ance with  the  Forms  and  Procedure  and  iu 
helping  Counsel  at  the  hearing  of  the  evidence, 
to  elicit  the  facts  of  a  case  and  apply  the  legal 
principles  bearing  on  it." 

Even  though  the  respondent  does  not  ap- 
pear the  petitioner  must  prove  his  case  strictly 
in  all  necessary  particulars,  viz.,  as  to  domi- 
cile, marriage,  ^dentity  of  parties,  the  charge 
upon  which  the  petition  is  based,  and  must 
negative  collusion,  condonation  and  conniv- 
ance. 


RULE  147. 

PARTIES  TO  BE  EXAMINED  ON  OATH  OR  AFFIRMA- 
TION— THE  CANADA  EVIDENCE  ACT  TO  APPLY. 

The  petitioner  and,  if  the  respondent  ap- 
pears, the  respondent,  and  all  witnesses  pro- 
duced before  the  Committee,  shall  be  examined 
upon  oath,  or  upon  affirmation  in  cases  where 
witnesses  are  allowed  by  the  law  of  Canada  to 
affirm;  and  the  law  of  evidence  shall,  subject 
to  the  provisions  in  these  rules,  apply  to  pro- 
ceedings before  the  Committee,  and  shall  be 
observed  in  all  questions  of  fact. 


(54  SENATE  RULE  147. 

2.  Declarations  allowed  or  required  in 
proof,  may  be  made  under  The  Canada  Evi- 
dence Act,  1893. 

NOTES. 

It  is  usual  for  the  Chairman  of  the  Com- 
mittee to  administer  the  oath  or  affirmation  to 
each  witness.  By  section  30  of  the  Revised 
Statutes  of  Canada,  chapter  10,  it  is  provided 
that  any  oath  or  affirmation  under  this  Act 
may  be  administered  by  :  — 

(a)  The  Speaker  of  the  Senate. 


The  Chairman  of  any  Committee  of 
the  Senate. 

(c)  Such  person  or  persons  as  may  from 
time  to  time  be  appointed  for  that  purpose, 
either  by  the  Speaker  of  the  Senate  ....... 

or  by  any  standing  order  of  the  Senate. 

No  standing  order  on  the  subject  has  been 
passed  by  the  Senate. 

Even  though  the  application  is  not  op- 
posed, the  petitioner  must  prove  his  case 
strictly  in  every  particular,  viz.  :  as  to  domi- 
cile, marriage,  identity,  and  the  offence  in  re- 
spect of  which  relief  is  sought. 

The  former  rule  provided  that  the  rules 
of  evidence  in  force  in  Canada  as  to  indictable 
offences  should  apply  to  proceedings  before 
the  Committee. 

The  present  rule  makes  the  law  of  evi- 
dence contained  in  The  Canada  Evidence  Act, 


SENATE  RULE  148.  65 

R.  S.  C.,  chapter  145,  apply  to  divorce  pro- 
ceedings. 


RULE  148. 

SUMMONS  FOR  WITNESSES  —  SERVICE—  TAXATION 
OF  EXPENSES. 

Summonses  for  the  attendance  of  wit- 
nesses and  for  the  production  of  papers  and 
documents  before  the  Senate  or  the  Standing 
Committee  on  Divorce  shall  be  under  the  hand 
and  seal  of  the  Speaker  of  the  Senate,  and  may' 
be  issued  by  the  Clerk  of  the  Committee,  at 
any  time  after  the  date  of  the  hearing  has  been 
appointed,  to  the  party  applying  therefor. 

Such  summonses  may  be  served  by  any 
literate  person,  or,  if  so  ordered  by  the  Senate 
or  by  the  Committee  on  Divorce,  shall  be 
served  by  the  Gentleman  Usher  of  the  Black 
Rod  or  by  any  one  authorized  by  him  to  make 
such  service. 

The  reasonable  expenses  of  making  such 
service  and  the  reasonable  expenses  of  every 
witness  for  attending  in  obedience  to  such 
summons  shall  be  taxed  by  the  Chairman  of 
the  Committee.  B.  813. 

NOTE. 

Summonses  are  obtainable  from  the  Law 
Clerk  of  the  Senate,  who  is  the  Clerk  of  the 

B.D.  —  5 


6ft  SENATE  RULE  149. 

Committee.  They  are  not  issued  in  blank ;  the 
solicitor  in  charge  is  required  to  furnish  the 
name  and  address  of  each  witness  who  is  to  be 
summoned.  Personal  service  is  required  ac- 
companied by  payment  of  travelling  expenses. 
Any  literate  person  is  competent  to  effect 
service.  The  Chairman  of  the  Committee  has 
power  to  fix  the  amount  payable  to  each  wit- 
ness for  his  time  and  expenses.  No  tariff  of 
fees  and  expenses  has  been  established.  In 
view  of  the  importance  of  divorce  applications 
the  cautious  solicitor  will  not  adhere  strictly 
to  court  tariffs,  but  will  see  that  the  witness  is 
properly  compensated  for  his  time  and 
trouble. 


RULE  149. 

DISOBEDIENCE   OF   WITNESS— COMMITTAL   TO 
CUSTODY. 

In  case  any  witness  upon  whom  such  sum- 
mons has  been  served  refuses  to  obey  the  same, 
such  witness  may  by  order  of  the  Senate  be 
taken  into  custody  of  the  Gentleman  Usher  of 
the  Black  Rod,  and  shall  not  be  liberated  from 
such  custody  except  by  order  of  the  Senate 
and  after  payment  of  the  expenses  incurred. 
B.  814. 

NOTE. 

Where  a  witness,  who  has  been  properly 
served  with  a  summons  and  who  has  been  paid 


SENATE  RULE  150.  67 

or  tendered  his  proper  expenses,  refuses  to 
obey  the  summons,  the  Committee  will  make 
a  special  report  of  the  circumstances  to  the 
House,  and  an  order  will  then  be  made  by  the 
House  requiring  such  witness  to  attend.  In 
default,  he  may  be  ordered  to  be  taken  into 
the  custody  of  the  Usher  of  the  Black  Rod. 
Such  an  order  becomes  ineffective  on  the  pro-, 
rogation  of  Parliament.  The  expenses  refer- 
red to  are  those  incurred  in  arresting  and 
maintaining  the  witness  while  in  custody. 


RULE  150. 

FORMS. 


The  subjoined  forms,  varied  to  suit  the 
circumstances  of  the  case,  or  forms  to  the  like 
effect,  may  be  used  in  proceedings  for  divorce. 


NOTE. 


While  strict  compliance  with  the  forms 
is  not  essential,  the  solicitor  must  be  careful 
to  see  that  all  facts  necessary  to  give  full 
notice  of  the  grounds  on  which  the  divorce  is 
sought  are  alleged  with  particularity. 


RULE  151. 

RULES  OF  SENATE  TO  APPLY. 

All  rules  of  the  Senate  which  by  reason- 
able intendment  are  applicable  to  proceedings 


68  SENATE  RULE  152. 

in  divorce,  shall,  except  in  so  far  as  altered  or 
modified  by  these  rules,  or  inconsistent  there- 
with, apply  to  such  proceedings. 


RULE  152. 

PROVISION  FOR  CASES  NOT  PROVIDED  FOR  IN  THE 
RULES. 

In  cases  not  provided  for  by  these  rules 
the  general  principles  upon  which  the  Imperial 
Parliament  proceeds  in  dissolving  marriage 
and  the  rules,  usages  and  forms  of  the  House 
of  Lords  in  respect  of  divorce  proceedings 
may,  so  far  as  they  are  applicable,  be  applied 
to  divorce  proceedings  before  the  Senate  and 
before  the  Standing  Committee  on  Divorce. 


XOTE. 


This  rule  is  permissive  merely,  not  im- 
perative, and  though  the  Senate  in  divorce 
legislation  looks  to  the  House  of  Lords  for  the 
purpose  of  ascertaining  the  course  followed 
there,  it  has  never  felt  itself  bound  to  accept 
the  decision  of  the  House  of  Lords  as  binding 
and  conclusive.  The  Senate  follows  preced- 
ents when  they  commend  themselves  to  the 
judgment  of  the  Senate,  and  not  otherwise, 
the  decision  of  the  House  of  Lords  on  Bills  of 
Divorce  not  having  the  weight  which  attaches 
to  the  decisions  of  the  ordinary  legal  tribunals. 


CHAPTER  IV. 

PROCEDURE  IN  THE  HOUSE  OF 

r*  r\  •»*"»  r  /-\  -VT  cv 

COMMONS. 

The  House  of  Commons  not  having  passed 
any  special  rules  relating  to  Divorce  Bills, 
such  bills  are  in  that  House  governed  by  the 
rules  and  practice  relating  to  Private  Bills. 

As  already  mentioned,  according  to  Rule 
No.  51  of  the  Commons  Private  Bills  require 
two  months  advertising  in  the  Canada  Gazette 
and  in  the  local  newspaper.  In  practice  the 
advertisement  in  accordance  with  the  Senate 
rule  serves  for  the  Commons,  subject  only 
to  this  difference,  that  for  the  latter,  the  ad- 
vertisement must  be  published  for  two  months 
during  the  interval  of  time  between  the  close 
of  the  preceding  Session  and  the  consideration 
of  the  petition.  Rule  51. 

Copies  of  the  newspapers,  containing  the 
first  and  last  insertion  of  the  notice  accom- 
panied by  a  statutory  declaration  of  publica- 
tion, should  be  filed  with  the  Clerk  of  the 
Standing  Orders  Committee. 

There  is  no  rule  of  the  House  of  Com- 
mons requiring  service  on  the  respondent. 

The  House  fees  having  been  paid  in  the 
Senate,  where  the  bill  originated,  no  further 
fee  is  payable  in  the  House  of  Commons. 


70  PROCEDURE    IN    HOUSE    OF    COMMONS. 

The  proceedings  in  the  Commons  are  in- 
itiated by  the  presentation  of  a  petition  ad- 
dressed to  "  The  Honourable  The  House  of 
Commons  in  Parliament  assembled,"  and 
otherwise  identical  in  form  with  that  pre- 
sented in  the  Senate.  This  petition  must  be 
signed  by  the  applicant,  and  should  be  handed 
to  a  member  of  the  House  to  be  presented 
within  the  first  three  weeks  of  the  session. 
Rule  49. 

The  petition,  having  been  presented,  goes 
without  special  order  to  the  Committee  on 
Standing  Orders,  Rule  53,  to  report  on  the 
due  publication  of  the  advertisement,  and  to 
see  that  the  petition  does  not  ask  any  relief 
other  than  that  of  which  notice  has  been  given 
by  advertisement. 

Upon  the  Committee  reporting  that  the 
rules  have  been  duly  complied  with,  no  further 
step  is  taken  in  the  House  of  Commons  until 
the  Bill  is  sent  down  from  the  Senate. 

The  Bill  having  been  passed  by  the  Senate 
is  sent  down  to  the  House  of  Commons  for 
consideration,  accompanied  by  a  copy  "of  the 
evidence,  it  is  then  read  a  first  time  in  the 
Commons,  and  placed  on  the  order  paper  for 
a  second  reading,  after  which  the  Bill  and  the 
evidence  are  referred  to  iihe  Private  Bills 
Committee  for  consideration.  Each  member 
of  the  House  is  furnished  with  a  copy  of  the 
evidence. 


PROCEDURE    IN    HOUSE    OP    COMMONS.  71 

When  the  Bill  comes  before  this  Com- 
mittee, the  evidence  is  considered.  Frequently 
a  discussion  occurs  as  to  the  sufficiency  of  the 
evidence.  If  the  Bill  passes  the  Committee 
the  Chairman  so  reports  to  the  House. 

If  the  report  is  adopted  by  the  House,  the 
Bill  is  placed  on  the  order  paper  for  the  fol- 
lowing day  for  consideration  in  Committee  of 
the  whole,  and  after  such  consideration  and 
report  by  the  Committee,  the  Bill  is  read  a 
third  time  and  passed. 

The  final  act  in  the  passing  of  a  Private 
Bill  is  obtaining  the  Royal  assent.  This  is 
occasionally  given,  to  Bills  that  have  passed 
both  Houses,  from  time  to  time  during  the 
Session,  or  otherwise  at  the  conclusion  of  the 
Session.  It  is  the  duty  of  the  solicitor  in 
charge  of  a  Bill  to  see  that  it  is  included  in  the 
list  of  Bills  submitted  for  the  Royal  assent. 


RULES  OF  THE  SENATE  RELATING 
TO  DIVORCE. 

Petitions,  133.  All  petitions  for  divorce  and  all 

&c.,    referred  .    . 

to  com-        matters  arising  out  of  petitions  for,  or 

rmttee   on 

Divorce.  bills  of  divorce,  shall  be  referred  to  the 
Standing  Committee  on  Divorce,  and  no 
reference  to  any  Committee  other  than 
that  Committee  shall  be  necessary  with 
respect  to  such  petitions,  bills  and  mat- 
ters. B.  800,  sq. 

Notice  of  Notice  of  the  day,  hour  and  place  of 

meetings  of  •/  7  j. 

committee,  every  sitting  of  the  Committee  shall  be 
given  by  posting  up  the  same  in  the  lobby 
of  the  Senate  not  later  than  the  afternoon 
of  the  day  before  the  time  appointed  for 
such  sitting.  B.  807. 

'»fh  in  h'.  •  '!i£{  )••  T" 

Reporting  134.  The  Official  Reporters  of  The 

of  evidence.  Senate,  or  one  of  them,  when  notified  by 
the  Chairman,  shall  be  in  attendance  at 
each  sitting  of  the  Committee,  and,  hav- 
ing first  been  duly  sworn  to  discharge 
faithfully  such  duty,  shall  take  down  in 
shorthand  and  afterwards  extend  the  evi- 
dence of  witnesses  examined  before  the 
Committee,  which  evidence  shall  be 
printed  under  the  supervision  of  the 
Clerk  of  the  English  Journals.  B.  807. 

Evidence,  135.  Evidence  taken  before  the  Corn- 

how  printed.  . 

mittee  shall  be  printed  apart  from  the 


RULES  OP  SENATE.  73 

Minutes  of  Proceedings  of  the  Senate, 
and  only  in  sufficient  numbers  for  the  use 
of  Senators  and  Members  of  the  House 
of  Commons,  that  is  to  say,  one  copy  for 
distribution  to  each  Senator  or  Member, 
ten  copies  for  the  parties  and  their  coun- 
sel, and  twenty-five  copies  to  be  kept  by 
the  Clerk  of  the  Senate  for  purposes  of 
record  and  reference.  B.  815. 

136.  Every  applicant  for  a  Bill  of  Notice  of 
Divorce  shall  give  notice  of  his  or  her  tow  given.' 
intended  application,  and  shall  specify 
therein  from  whom  and  for  what  cause 
such  divorce  is  sought,  and  shall  cause 
such  notice  to  be  published  during  at  least 
three  months  before  the  consideration  by 
the  Committee  on  Divorce  of  his  or  her 
petition  for  the  said  Bill,  in  the  Canada 
Gazette  and  in  two  newspapers  published 
in  the  district  in  Quebec,  Manitoba,  Sas- 
katchewan, Alberta,  British  Columbia  or 
the  North-west  Territories,  or  in  the 
county  or  union  of  counties  in  other  pro- 
vinces, wherein  such  applicant  usually 
resided  at  the  time  of  the  separation  of 
the  parties;  but  if  the  requisite  number 
of  papers  cannot  be  found  therein,  then 
in  an  adjoining  district  or  county  or 

union  of  counties. 
-.j;if   Ti'-iiv;   .titHbn<xj>,'n   <>if-1    H>  ^bolv/oajl 

Notices  given  in  the  Provinces  of  Provisions 

,  »s  to  notice. 

Quebec  and  Manitoba  are  to.  be  published 


74  RULES  OF  SENATE. 

in  one  English  and  one  French  news- 
paper, if  there  be  such  newspapers  pub- 
lished in  the  district,  but  otherwise  shall 
be  published  in  one  newspaper  in  both 
languages.  The  notice  may  be  in  the  sub  - 
joined  form  "  A."  If  a  notice  given  for 
any  session  of  Parliament  is  not  com- 
pleted in  time  to  allow  the  petition  to  be 
dealt  with  during  that  session,  the  peti- 
tion may  be  presented  and  dealt  with  dur- 
ing the  next  ensuing  session,  without  any 
further  publication  of  such  notice.  B.  802. 

service  of  137.  A  copy  of  the  said  notice  and 

Notice  and 

Petition  on     a  copy  of  the  petition  to  be  presented 

respondent.  Jr*/ 

shall,  at  the  instance  of  the  applicant, 
and  not  less  than  two  months  before  the 
consideration  by  the  Committee  of  the 
petition,  be  served  personally,  when  that 
can  be  done,  on  the  person  from  whom 
the  divorce  is  sought,  who  is  hereinafter 
called  "  the  respondent." 

If  the  residence  of  the  respondent  is 
not  known  or  personal  service  cannot  be 
effected,  then,  if  it  be  shown  to  the  satis- 
faction of  the  Committee  that  all  reason- 
able efforts  have  been  made  to  effect  per- 
sonal service,  and,  if  unsuccessful,  to 
bring  such  notice  and  petition  to  the 
knowledge  of  the  respondent,  what  has 
been  done  may  be  deemed  and  taken  by 


RULES  OF  SENATE.  75 

the  Committee  as  sufficient  service.  B. 
803. 

138.  No  petition  for  a  Bill  of  divorce  Petition, 
shall  be  presented  to  the  Senate  after  the  «e&ed. 
first  sixty  days  of  the  Session.    B.  805. 

139.  The  petition  of  an  applicant  for  Form  and 
a  Bill  of  divorce  must  be  fairly  written  p^mon80 
and  must  be  signed  by  the  petitioner,  and 
should  briefly  set  forth  the  marriage,  the 
names  in  full  of  the  parties  thereto,  their 

ages  and  occupations,  when,  where  and 
by  whom  the  ceremony  was  performed, 
the  domicile  and  residence  of  each  of  the 
parties  at  the  time  of  the  marriage,  their 
matrimonial  domicile,  residence,  and  any 
change  thereof,  the  material  facts  upon 
which  the  petitioner  relies  as  the  grounds 
on  which  relief  is  asked,  and  the  nature 
of  the  relief  prayed  for. 

The  petition  should  also  negative 
connivance  at,  or  condonation  of  the 
wrong  complained  of  and  collusion  in  the 
application  for  divorce. 

2.  The  allegations    of    the    petition  Allegations, 

0  *  how    verified. 

must  be  verified  by  declaration  of  the 
petitioner,  under  the  Cartiada  Evidence 
Act.  B.  805. 

3.  The  copy  of  the  petition  served  copy  served, 

v*  ~  how  en- 

upon  the  respondent  shall  have  endorsed 


76  RULES  OF  SENATE. 

thereon,  or  appended  thereto,  the  follow- 
ing information : — 

(1)  The  petitioner's  residence  at  the 
time  of  service. 

(2}  A  Post  Office  address  in  Canada 
at  which  letters  and  notices  for  the 
petitioner  may  be  delivered. 

(5)  The  name  and  address  of  the  soli- 
citor, if  any,  acting  for  the  petitioner. 

(4)  If  such  solicitor's  address  is  not 
at  Ottawa,  the  name  and  address  of 
some  agent  for  him  at  Ottawa,  upon 
whom  all  notices  and  papers  may  be 
served. 

(5)  That  if  the  respondent  desires 
to  oppose  the  granting  of  the  divorce 
and  to  be  heard  by  the  Senate  Commit- 
tee on  Divorce,  the  respondent  must 
send  a  notice  to  that  effect  to  the  Clerk 
of  the  Senate  at  the  Parliament  Build- 
ings, Ottawa,  within  two  months  from 
the  date  of  service  upon  the  respondent, 
and  must  in  the  notice  to  the  Clerk  of 
the  Senate  give:— 

(a)  The  respondent's  residence  at 
the  time  of  sending  such  notice. 

(6)  A  Post  Office  address  in  Canada 
at  which  letters  and  notices  for  the  re- 
spondent may  be  delivered. 


RULES  OF  SENATE.  77 

(c)  The  name  and  address   of   the 
solicitor,  if  any,  acting  for  the  respon- 
dent. 

(d)  If  such  solicitor's  address  is  not 
at  Ottawa,  the  name  and  address  of 
some  agent  for  him  at  Ottawa    upon 
whom  all  notices  and  papers  may  be 
served.     .><jjqu.j 

(6}  That,  if  the  respondent  does  not 
so  notify  the  Clerk  of  the  Senate,  the 
petition  may  be  considered,  and  a  Bill 
of  divorce  founded  thereon  may  be 
passed,  without  any  further  notice  to 
the  respondent 

(7)  When  the  petition  is  one  by  a 
husband  for  a  divorce  from  his  wife, 
that,  if  the  wife  shows  to  the  satisfac- 
tion of  the  Senate  Committee  on  Di- 
vorce that  she  has,  and  is  prepared  to 
establish  upon  oath,  a  good  defence  to 
the  charges  made  by  the  petition,  and 
that  she  has  not  sufficient  money  to  de- 
fend herself,  the  Committee  may  make 
an  order  that  her  husband  shall  pro- 
vide her  with  the  necessary  means  to 
sustain  her  defence,  including  the  cost 
of  retaining  Counsel  and  the  travelling 
and  living  expenses  of  herself  and  of 
witnesses  summoned  to  Ottawa  on  her 
behalf.  B.  804  (0,  seq. 


RULES  OF  SENATE. 


Deposit  of 
fees. 


Petition, 
&c.,  referred 
to  Com- 
mittee. 


Copies  of 
petition, 
&c.,  fur- 
nished to 
Committee. 


140.  No  petition  for  a  Bill  of  divorce 
shall  be  considered  by  the  Committee  un- 
less the  applicant  has  paid  into  the  hands 
of  the  Clerk  of  the  Senate  the  sum  of  two 
hundred  dollars,  towards  expenses  which 
may  be  incurred  during  the  proceedings 
upon  the  petition  and  the  Bill,  and  also 
the  sum  of  ten  dollars  to  pay  for  trans- 
lating and  printing  600  copies  of  the  Bill 
in  English  and  200  copies  in  French.  The 
translation  shall  be  made  by  the  transla- 
tors of  the  Senate,  and  the  said  sums  shall 
be  subject  to  the  order  of  the  Senate.    B. 
804. 

141.  The  petition  when  presented  to 
the  Senate  shall  be  accompanied  by  the 
evidence  of  the  publication  and  the  notice 
as  required  by  Rule  136,  and  by  declara- 
tion in  evidence  of  the  service  of  a  copy 
of  the  notice  and  of  a  copy  of  the  petition 
as  provided  by  Rule  137.     The  petition, 
notice,  and  evidence  of  publication    and 
service,  and  all  papers  connected  there- 
with, shall  thereupon  stand  as  referred, 
without  special  order  to  that  effect,  to  the 
Standing  Committee  on  Divorce. 

A  copy  of  every  petition  for  a  Bill  of 
divorce,  or  relating  to  any  matter  arising 
out  of  an  application  for  divorce,  and  of 
every  document  and  paper  accompanying 


RULES  OP  SENATE.  79 

such  petition  or  produced  in  evidence  be- 
fore the  Committee,  shall  be  furnished  to 
the  Committee  by  the  person  on  whose  be- 
half the  petition,  document  or  paper  is 
presented  or  produced.  B.  806. 

142.   The  Committee  shall  examine  committee 
the  notice  of  application  to  Parliament,  ?«S™lB 
the    petition,  the    information    endorsed 
upon  or  appended   to   the   petition,  the 
evidence  of  publication  of  the  notice,  the 
evidence  of  the  service  of  a  copy  of  the 
notice  and  of  a  copy  of  the  petition,  all 
other  papers  referred  with  the  petition, 
and  also  the  notice,  if  any,  given  by  the 
respondent  to  the  Clerk  of  the  Senate. 

2.  If  any  proof  is  found  by  the  Corn-  Defective 
mittee  to  be  defective,  it  may  be  supple- 
mented by  statutory  declaration  to  be  laid 
before  the  Committee. 

3.  If  the  circumstances  of  the  case  substi 

tutional 

seem  so  to  require,  the  Committee,  before  service, 
proceeding  to  hearing,  and  inquiry  as 
hereinafter  required,  may  make  such  or- 
der as  to  the  Committee  seems  requisite 
and  just  for  effecting  substitutional  ser- 
vice by  advertisement,  registered  letter, 
or  otherwise,  upon  both  or  either  of  the 
parties. 

4.  If  the  requirements  of  these  rules.  Non-com- 

j-  ph»nce.witn 

or  of  any  order  made  thereunder  by  the  ™1**-  *c- 


80 


RULES  OF  SENATE. 


When  rules 
complied 
with,  Com- 
mittee to 
hear  evi- 
dence. 


Report  by 
Committee. 


Evidence 
reported. 


Committee,  have  not  been  complied  with 
in  any  material  respect,  the  Committee 
shall  report  thereon  to  the  Senate,  and 
shall  not,  without  further  order  from  the 
Senate,  proceed  to  hear  and  inquire  into 
the  matters  set  forth  in  the  petition. 

5.  If  the  requirements  of  these  rules 
or  of  any  order  made  thereunder  by  the 
Committee,  have  been  complied  with  ia 
all  material  respects,  the  Committee  shall, 
after  reasonable  notice  to  the  parties,  pro- 
ceed with  all  reasonable  despatch  to  hear 
and  to  inquire  into  the  matters  set  forth 
in  the  petition  and  shall  take  evidence 
upon  oath  touching  the  right  of  the  peti- 
tioner to  the  relief  prayed  for.  B.  807. 

143.  After  such  hearing  and  inquiry 
the  Committee  shall  report  to  the  Senate, 
stating  whether  the  requirements  of  these 
rules  have  been  complied  with  in  all 
material  respects;  and,  if  it  shall  have 
been  then  found  that  any  such  require- 
ment has  not  been  so  complied  with,  stat- 
ing in  what  respect  there  has  been  de- 
fault, and  also  stating  the  conclusions  ar- 
rived at  and  the  action  recommended  by 
the  Committee. 

2.  The  report  shall  be  accompanied 
by  the  testimony  of  the  witnesses  exam- 
ined, and  by  all  documents,  papers  and 
instruments  referred  to  the  Committee 


RULES  OF  SENATE.  81 

by  the  Senate  or  received  in  evidence  by 
the  Committee. 

3.  If    the    report    recommends    the  Draft  BUI 
granting  of  relief  to  the  petitioner  it  shall  " 
also  be  accompanied  by  a  draft,  approved 

by  the  Committee,  of  a  Bill  to  effect  such 
relief. 

4.  The  minority  may  bring  in  a  re-  Minority 
port  stating  the  grounds  upon  which  they 
dissent  from  the  report  of  the  Commit- 

tee.   B.  809,  814,  sq. 

144.  Upon  the  adoption  of  the  report 


of  the  Committee,  the  Bill  may  be  pre- 
sented and  read  a  first  time;  and  there- 
after no  further  reference  of  the  Bill  to 
the  Committee  shall  be  necessary,  unless 
so  ordered  by  the  Senate. 

145.  If  adultery  be  proved,  the  party  connivance, 

„  ,  ,,  ,.  .  ,   ,  condonation, 

from  whom  the  divorce  is  sought  may  common,  &0. 
nevertheless  be  admitted  to  prove  con- 
nivance at,  or  condonation  of  the  adul- 
tery, collusion  in  the  proceedings  for  di- 
vorce, or  adultery  on  the  part  of  the  peti- 
tioner. 

Connivance  at,  or  condonation  of  the 
adultery,  or  collusion  in  the  proceedings 
for  divorce,  is  always  a  sufficient  ground 
for  rejecting  a  Bill  of  Divorce,  and  shall 
be  inquired  into  by  the  Committee.  And 

B.D.  —  6 


82 


RULES  OP  SENATE. 


When 
Minister  of 
Justice  may 
intervene. 


Parties  may 
be  heard. 


should  the  Committee  have  reason  to  sus- 
pect connivance  or  collusion,  and  in  their 
opinion  it  is  desirable  that  fuller  inquiry 
should  be  made,  such  opinion  and  the  rea- 
sons therefor  shall  be  communicated  to 
the  Minister  of  Justice,  that  he  may  inter- 
vene and  oppose  the  bill  should  the  inter- 
est of  public  justice  in  his  opinion  call 
for  such  intervention.  B.  812,  sq. 

146.  The  petitioner,  the  respondent 
and,  if  the  Committee  sees  fit,  any  other 
person  affected  by  the  proceedings  had, 
may  be  heard  before  the  Committee  in 
person  or  by  counsel  learned  in  the  law 
of  the  bar  of  any  province  in  Canada.    B. 
813. 

147.  The  petitioner  and,  if  the  re- 
spondent appears,  the  respondent,  and  all 
witnesses  produced  before  the  Commit- 
tee shall  be  examined  upon  oath,  or  upon 
affirmation  in  cases  where  witnesses  are 
allowed  by  the  law  of  Canada  to  affirm; 
and  the  law  of  evidence  shall,  subject  to 
the  provisions  in  these  rules,  apply  to  pro- 
ceedings before  the  Committee,  and  shall 
be  observed  in  all  questions  of  fact. 


Declarations.  2.  Declarations  allowed  or  required 
in  proof,  may  be  made  under  the  Canada 
Evidence  Act.  B.  811,  sq. 


Evidence 
taken  under 
oath. 


RULES  OF  SENATE.  33 

148.  Summonses  for  the  attendance  witnesses, 
of  witnesses  and  for  the  production    of 
papers  and  documents  before  the  Senate 

or  the  Standing  Committee  on  Divorce 
shall  be  under  the  hand  and  seal  of  the 
Speaker  of  the  Senate,  and  may  be  issued 
by  the  Clerk  of  the  Committee,  at  any 
time  after  the  date  of  the  hearing  has 
been  appointed,  to  the  party  applying 
therefor. 

Such  summonses  may  be  served  by 

•1.11  •  /»  111       how  served. 

any  literate  person,  or,  if  so  ordered  by 
the  Senate  or  by  the  Committee  on  Di- 
vorce, shall  be  served  by  the  Gentleman 
Usher  of  the  Black  Rod  or  by  any  one 
authorized  by  him  to  make  such  service: 

The  reasonable  expenses  of  making  Pees,  how 

taxed. 

such  service  and  the  reasonable  expenses 
of  every  witness  for  attending  in  obedi- 
ence to  such  summons  shall  be  taxed  by 
the  Chairman  of  the  Committee.  B.  813. 

149.  In  case  any  witness  upon  whom  witness 

,  ,  -.          ,,  disobeying 

such  summons  has  been  served  refuses  to  summons, 
obey  the  same,  such  witness  may  by  order 
of  the  Senate  be  taken  into  custody  of  the 
Gentleman  Usher  of  the  Black  Rod,  and 
shall  not  be  liberated  from  such  custody 
except  by  order  of  the  Senate  and  after 
payment  of  the  expenses  incurred.  B. 
814. 


84 


RULES  OF  SENATE. 


Forms. 


Rules  of 
Senate  to 
apply. 


Unprovided 
cases. 


150.  The  subjoined  forms,  varied  to 
suit  the  circumstances    of    the    case,  or 
forms  to  the  like  effect,  may  be  used  in 
proceedings  for  divorce. 

151.  All  rules  of  the  Senate  which  by 
reasonable  intendment,  are  applicable  to 
proceedings  in  divorce,  shall,  except  in  so 
far  as  altered  or  modified  by  these  rules, 
or  inconsistent  therewith,  apply  to  such 
proceedings.    B.  816,  sq. 

152.  In  cases  not  provided  for  by 
these  rules  the  general  principles  upon 
which  the  Imperial  Parliament  proceeds 
in  dissolving  marriage  and  the  rules,  us- 
ages and  forms  of  the  House  of  Lords  in 
respect  of  divorce  proceedings  may,  so 
far  as  they  are  applicable,  be  applied  to 
divorce   proceedings   before   the    Senate 
and  before  the  Standing  Committee    on 
Divorce.    B.  817. 


FORMS.  85 

A. 

Divorce  Forms. 
NOTICE  OF  APPLICATION  FOR  DIVORCE. 

Notice  is  hereby  given  that  (name  of  ap- 
plicant in  full)  of  the  of  , 
in  the  county  (or  district)  of  ,  in  the 
Province  of  (or  in  the  North-west 
Territories  or  as  the  case  may  be),  (here  state 
the  addition  or  occupation,  if  any,  of  appli- 
cant, and  the  residence  of  the  applicant  if  it  is 
not  in  the  same  place  as  the  domicile  of  the 
applicant),  will  apply  to  the  Parliament  of 
Canada,  at  the  next  session  thereof,  for  a  Bill 
of  Divorce  from  his  wife  (or  her  husband), 
(here  state  names  in  full,  residence  and  addi- 
tion or  occupation,  if  any,  of  the  person  from 
whom  the  divorce  is  sought),  on  the  ground 
of  (adultery,  adultery  and  desertion,  or  as  the 
case  may  be). 

Dated  at  ,  ]  Signature  of  applicant 

Province  of  ,    [•     or  of  solicitor  for 

day  of        ,  19    .  J     applicant. 

(When  any  particular  relief  is  to  be  ap- 
plied for,  the  nature  thereof  should  be  briefly 
indicated  in  the  notice.) 


86  FORMS. 

B. 

DECLARATION  AS  TO  SERVICE  OF  NOTICE,,  PETITION 
AND  INFORMATION  TO  RESPONDENT,  WHEN 
MADE  PERSONALLY. 


Province  of 

County   (or  district) 

of 

To  Wit: 


I,  A.  B.,  of  the  , 

in  the   county    (or 

of 

district)  of  , 

in     the     Province 
of 

(occupation)  do  solemnly  declare: — 

1.  That  on  the  day  of  , 
A.D.  19     ,  I  served  C.  D.  (name  of  person 
served)  personally  with  a  true  copy  of  the 
notice  hereto  attached  and  marked  "  A,"  by 
giving  the  said  copy  to,  and  leaving  it  with  the 
said  C.  D.  at  (state  place  of  service,  with  par- 
ticularity as  to  street,  number  of  house,  or 
other  detail.) 

2.  That  at  the  said  time  and  place  and  in 
the  said  manner  I  also  served  the  said  C.  D. 
with  a  true  copy  of  the  petition  hereto  attached 
and  marked  "  B,"  appended  to  which  copy 
there  was  then  a  true  copy  of  the  information 
to  the  respondent  which  is  hereto  also  attached 
and  marked  "  C." 

3.  That  I  know  the  said  C.  D.,  and  that  I 
believe  him   (or  her)   to  be  the  person  de- 
scribed in  the  said  notice  as  the  husband  (or 
wife)  of  E.  F.,  therein  named. 


FORMS.  37 

(Add  any  statements  made  by  the  person 
served  to  the  person  effecting  the  service, 
showing  identity.) 

And  I  make  this  solemn  declaration  con- 
scientiously believing  the  same  to  be  true, 
knowing  that  it  is  of  the  same  force  and  effect 
as  if  made  under  oath,  and  by  virtue  of  The 
Canada  Evidence  Act. 


Declared  before  me  at  the 
of  in  the 

county  of  in  the 

Province  of  , 

this  day  of       , 

A.D.  19 


Signature 

of 
declarant. 


NOTE. — Exhibits  attached  to  the  declara- 
tion should  be  verified  under  the  hand  of  the 
public  functionary  before  whom  the  declara- 
tion is  made. 


C. 
GENERAL  FORM  OF  PETITION. 

TO   THE    HONOURABLE    THE    SENATE    OF    CANADA 
IN  PARLIAMENT  ASSEMBLED. 

The  petition  of  A.  B.  of  the  of 

in  the  County  of  in  the 

Province  of  and 

at  present  residing  at  ,  the  lawful 

husband  (or  wife)  of  C.  D.,  of,  &c.,  (state 
names  in  full,  domicile,  actual  residence  and 
occupation}. 


88  FORMS. 

Humbly  showeth : 

1.  That  on  or  about  the  day  of 

A.D.  19  ,  your  petitioner,  (if  the 
wife  is  the  petitioner  state  with  particularity 
her  maiden  name  and  residence.  If  she  had 
been  married  before  the  marriage  which  she 
seeks  to  dissolve,  state  with  particularity  the 
circumstances  and  her  name)  was  lawfully 
married  to  the  said  C.  D.  at 

2.  That  the  said  marriage  was  by  license 
duly  obtained  (or  as  the  case  may  be)  and  was 
celebrated  by 

3.  That  at  the  time  of  the  said  marriage 
your  petitioner  and  the  said  C.  D.  were  domi- 
ciled in  Canada,  and  have  ever  since  continued 
to  be  and  are  now  domiciled  in  Canada. 

(All  facts  as  to  the  residence  and  domicile 
of  the  parties  at  the  time  of  their  marriage 
and  as  to  any  change  of  residence  or  domicile 
since  their  marriage  should  be  stated  with 
particularity.) 

4.  That  after  said  marriage 
your  petitioner  lived  and  cohabited  with  said 

at  ,  and  that  there  are 

now  living  issue  of  the  said  marriage 
children,  viz. :  Mary  D.,  born  the         day  of 
A.D.  19    ,  and  Elizabeth  D.,  born  the 
day  of  ,  A.D.  19    ,  (or  as  the  case  may 

be.) 


FORMS.  89 

5.  That  on  or  about  the  day  of        , 
A.D.  19    ,  at  the             in  the  , the  said 
C.  D.  committed  adultery  with  one  G.  H. 

of  ,  and  since  then  on  divers  oc- 

casions has  committed  adultery  with  the  said 
G.  H. 

6.  That  your  petitioner  ever  since 
discovered  that  the  said  had  committed 
the  said  adultery  has  lived  separate  and  apart 
from                  and  the  said  C.  D.  has  not  since 
cohabited  with  your  petitioner. 

7.  That  your  petitioner  has  not  in  any 
way  connived  at,  or  condoned  the  adultery 
committed  by  the  said  C.  D. ;  and  that  no  col- 
lusion exists  between  your  petitioner  and  the. 
said  C.  D.  to  obtain  a  dissolution  of  their  said 
marriage. 

Your  petitioner  therefore  humbly  prays: 

That  your  Honourable  House  will  be 
pleased  to  pass  an  Act  dissolving  the  said  mar- 
riage between  your  petitioner  and  the  said 
C.  D.  and  enabling  your  petitioner  to  marry 
again,  and  granting  your  petitioner  such 
further  and  other  relief  in  the  premises  as  to 
your  Honourable  House  may  seem  meet. 

And  as  in  duty  bound  your  petitioner  will 
ever  pray. 

Signature  of  Petitioner. 


90  FORMS. 

D. 

DECLARATION  VERIFYING  PETITION. 

I,  A.  B.,  of  the 

County   (or  district) 
of 

To  Wit: 


Province  of 

of          ,  in  the  county 


of  ,  in  the  prov- 

ince of  ,  (oc- 

cupation, if  any.}  In 
the  case  of  the  ivife  being  the  applicant  say 
"  wife  of  C.  D./'  and  give  names,  residence 
and  occupation  or  addition  of  the  husband), 
the  petitioner  in  the  foregoing  petition  named, 
do  solemnly  declare:— 

1.  That,  to  the  best  of  my  knowledge  and 
belief,  the  allegations  contained  in  the  para- 
graphs of  the  foregoing  petition,  numbered 
respectively  ,  are,  and  each  of  them 
is  true. 

2.  (//  any  matter  is  alleged,  of  which  the 
petitioner  has  not  personal  knowledge,  add, 
"  That,  with  respect  to  the  matters  alleged  in 
the  paragraphs  of  the  foregoing  petition,  num- 
bered respectively  ,  I  am  credibly  in- 
formed and  believe  them,  and  each  of  them,  to 
be  true.") 

And  I  make  this  solemn  declaration  con- 
scientiously believing  it  to  be  true,  knowing 
that  it  is  of  the  same  force  and  effect  as  if 


FORMS.  91 

made  under  oath,  and  by  virtue  of  the  Canada 
Evidence  Act. 


Declared  before  me  at  the 

of  in  the 

county  of  ,  in  the 

Province  of  ,  this 

day  of        ,  A.D.  19    . 


Signature 

of 
declarant. 


E. 

INFORMATION  TO  BE  ENDORSED  ON,  OR  APPENDED 
TO  THE  COPY  OF  THE  PETITION  SERVED  UPON 
THE  RESPONDENT. 

To  (Respondent's  name) 

In    accordance    with    Rule    139    of    the 
"  Standing  Orders  and  Rules  of  the  Senate  ' 
you  are  hereby  informed  that: 

1.  (Petitioner's  name),  the  petitioner,  is 
now  residing  at  No.  Street,  in  the 
City  of                ,  in  the  Province  of  (or 
in  the  State  of                 ,  U.S.A.,  or  as  the  case 
may  be.) 

2.  Letters  and  notice  for   (Petitioner's 
name)  may  be  delivered  by  sending  them  to 
the  following  address: 

(Post  Office  Address  in  Canada  to  be 
given.) 


92  FORMS. 

3.  The  name  and  address  of  the  solicitor 
acting  for   (Petitioner's  name)   are  as  fol- 
lows : — 

(Give  full  particulars.) 

4.  All  notices  and  papers  to  be  served 
upon  (Petitioner's  name)  in  this  matter  may 
be  so  served  by  serving  them  upon  (give  full 
particulars  of  the  name  and  address  of  some 
agent  in  the  City  of  Ottawa} . 

5.  If  you  desire  to  oppose  the  granting  of 
the  divorce  prayed  for  by  the  petition  of 
which  the  within  written  (or  hereto  annexed) 
document  is  a  true  copy,  you  must  within  two 
months  from  the  date  when  this  copy  is  served 
upon  you  send  a  notice  to  that  effect  to  the 
Clerk  of  the  Senate  of  Canada,  Parliament 
Buildings,  Ottawa,  Canada,  and  in  that  notice 
you  must  give  the  following  particulars : — 

(a)  Your  actual  residence  at  the  time  of 
sending  the  notice. 

(b)  A  post  office  address  in  Canada  at 
which  letters  and  notices  for  you  may  be 
delivered. 

(c)  The  name  and  address  of  your  soli- 
citor, if  any  is  acting  for  you. 

(d)  If  you  have  a  solicitor,  but  his  ad- 
dress is  not  at  Ottawa,  Canada,  you  must 
give  the  name  and  address  of  an  agent  at 


FORMS.  93 

Ottawa,  Canada,  upon  whom  all  notices  and 
papers  may  be  served. 

6.  If  you  do  not  send  such  notice  to  the 
Clerk  of  the  Senate  of  Canada  and  with  the 
above  particulars,  the  Petition  now  served 
upon  you  may  be  considered  by  the  Senate  of 
Canada  and  a  Bill  of  Divorce  founded  thereon 
may  be  passed  without  any  further  notice  to 
you. 

(When  the  petition  is  one  by  a  husband 
for  a  divorce  from  his  wife,  add  the  follow- 
ing) : 

7.  If  you  show,  to  the  satisfaction  of  the 
Senate  Committee  on  Divorce,  that  you  have, 
and  that  you  are  prepared  to  establish  upon 
oath,  a  good  defence  to  the  charges  made  by 
the  petition  of  which  the  within  written  (or 
hereto  annexed)  document  is  a  true  copy,  and 
that  you  have  not  sufficient  money  to  defend 
yourself,  that  Committee  may  make  an  order 
that  your  husband  shall  provide  you  with  the 
necessary  means  to  sustain  your  defence,  in- 
cluding the  cost  of  retaining  counsel,  and  the 
travelling  and  living  expenses  of  yourself  and 
of  witnesses  summoned  to  Ottawa  on  your  be- 
half. 

(Signature  of  petitioner  or  his  solicitor.) 


INDEX  OF  GASES. 


A.  v.  B 12 

Ash  Case  5,  26 

Browning  v.  Browning   35 

Campbell  Case  58,  59 

Dakin  Case    11 

Harris  Case  5 

Harrison  Case   10,  58 

Hearns  Case  5 

Holliwell  Case   58 

Hutcheon  Case    5,  57 

Lavell  Case   11 

Leaitch  Case   10 

Le  Mesurier  v.  Le  Mesurier  42 

Le  Sueur  v.  Le  Sueur 42 

Lowndes  Case  57 

Lyon  Case 58 

May  v.  May   12 

Morrison  Case  58 

Pitblado  Case   59 

Reid  v.  Aull   12 

Riddell  Case  58 

Ridout  Case  57 

Steven&on  Case  11 

Stock  Case  10 

T.  v.  B 12 

Tudor  Case 58 

White  Case    11 

Whiteaves  Case   58 

NOTE. — The  references  "B"  at  the  foot  of  each  rule  are 
to  the  third  edition  of  Bourinot's  Parliamentary  Procedure. 


INDEX. 

ABANDONMENT. 

Of  domicile  of  choice   45 

"          "          "     origin    45 

ABROAD. 

Affidavits  sworn  23 

ABSOLUTE  BARS  TO  RELIEF. 

Absence  of  jurisdiction  or  of  proof 53 

Adultery  on  part  of  petitioner   54 

Collusion    34,  53 

Condonation    34,  53 

Connivance  34,  54 

Insanity    55 

No  marriage   55 

Void   marriage   54 

ADDRESS  FOR  SERVICE 17 

ADULTERY. 

Bigamy  with  10 

By  petitioner   •.  54 

Condonation  of  34 

Connivance  at   34,  54 

Definition  of   34 

Disease,  communication  of  36 

Evidence  of   34 

Incestuous  10 

Insanity,  how  far  a  defence  55 

Revival  of,  after  condonation 53 

Single  witness  of  35 

Visiting  brothel,  how  far  evidence  of 36 

ADVERTISEMENT. 

Mode  of  9,  13 

Proof  of  13 

AFFIDAVITS   SWORN   ABROAD 23 

AGENT  AT  OTTAWA  TO  BE  APPOINTED    17,  20 

AMERICAN  DIVORCE. 

Of  no  effect  in  Canada  5 

ALBERTA,  JURISDICTION  OF  COURTS 12 


96  INDEX. 

BARRISTERS. 

Of  any  province  may  appear  61 

BARS  TO  RELIEF. 

Adultery  of  petitioner  54 

Collusion    34,  53 

Condonation    34,53 

Connivance    34,  54 

Conduct  conducing  to  adultery  55 

Cruelty    55 

Delay    55 

Desertion 55 

Neglect    55 

Separation    55 

BILL  OP  DIVORCE. 

Form  of   57 

Introduction  and  first  reading  in  Senate 61 

Prepared  by  Clerk  of  Committee 57 

Second   reading    61 

BRITISH  COLUMBIA  DIVORCE  COURT 2 

BRITISH  NORTH  AMERICA  ACT. 

Jurisdiction  of  Parliament  under 1 

Provision  as  to  Courts  in  existence  in  1867 1 

BROTHEL. 

Visit  to,  as  evidence  of  adultery 36 

CAUSES. 

For  which  divorce  may  be  granted 10 

CHAIRMAN  OF  COMMITTEE. 

Election  of  7 

CHILDREN,  CUSTODY  OF 58 

COHABITATION,  PRESUMPTION  OF  MARRIAGE  FROM  37 

COLLUSION    34,  53 

COMMITTEE  ON  DIVORCE. 

Appointment  of   6 

Hearing  by  32 

Notice  of  sitting   8 

Reference  of  petition  to   8 

Report  of    56,  57 

Sitting  of   33 

COMMONS,  PROCEDURE  IN  HOUSE  OF. 

Outline  of   69 

Publication  of  notice   13,  14,  69 

CONDONATION    .  34,53 


INDEX.  97 

CONNIVANCE     34,  54 

CONSANGUINITY    12 

COUNSEL  MAY  APPEAR  61 

COUNSEL  PEES. 

Husband  ordered  to  pay  wife's 21 

CRUELTY    55 

DECLARATION,  STATUTORY. 

As  to  service  of  notice  and  petition ^.22,  31 

To  verify  petition  16 

DEFENCES. 

Agreement  to  make  no 53 

Generally    52 

DEFINITION. 

Of  adultery   , 34 

"    collusion   53 

"    condonation    53 

"    connivance    54 

"    domicile    43 

DELAY. 

A  discretionary  bar  to  relief 55 

Excuse  for  55 

DESERTION  OR  WILFUL  SEPARATION. 55 

DISCRETIONARY  BARS  TO  RELIEF. 

Adultery  of  petitioner  54 

Conduct  conducing  to  adultery 55 

Cruelty,  desertion  55 

Delay  55 

Neglect 55 

Separation   : 55 

DISEASE. 

Adultery  proved  by  35 

DIVORCE. 

American,  not  recognized   5 

A  mensa  et  thoro  59 

Domicile  determines  right  to 4,  5,  42 

Effect  of   60 

Equal  right  of  wife  to,  with  husband 2 

Grounds  for 10 

Relief  discretionary  with  Parliament 55 

DOMICILE. 

Determines  jurisdiction    4,  5,  42 

Rules  relating  to  43 

B.D. — 7 


98  INDEX. 

EVIDENCE. 

Burden  of  proof   52,  63,  64 

Adultery   34 

Domicile    41 

Identity     26,  27 

Marriage    36,  38 

Photographs   37 

Presumption  of  37 

Registers  as 38 

Scientific,  of  communication  of  disease 35 

EXPENSES. 

Payment  of  30 

Return  of  deposit  57 

PEES,  PAYMENT  OF   30 

FOREIGN   DIVORCES 5 

Marriage,  proof  of   37 

FORMA  PAUPERIS,  IN. 

Procedure    30,  31 

FORMS. 

Of  declaration  of  service 86 

"  "  verifying  petition    90 

"    information  to  be  endorsed  on  petition 17,  91 

"    notice  of  application  85 

"     petition    18,   19,  87 

GROUNDS  FOR   RELIEF 10 

HOUSE   OF  LORDS. 

Parliament  not  bound  to  follow 68 

HUSBAND. 

Equal  right  of  wife  to  divorce 2 

IDENTIFICATION  OF  PARTIES. 

On  proof  of  adultery 36,  37 

"       marriage    36,37 

"    service  of  notice  of  application 22 

IMPOTENCY. 

As  a  ground  of  relief 10,  12 

Mode  of  proving 10 

Relief  in  Quebec  Courts  for 11 

INSANITY    12 

INTERVENTION  BY  MINISTER  OF  JUSTICE 34 

JUDICIAL  SEPARATION. 

Example  in  Campbell  case 58,  59 

JURISDICTION  OF  PARLIAMENT..  .  .1,     2 


INDEX.  99 

LAPSE  OF  TIME   55 

LEGAL   EFFECTS  OF  DIVORCE 60 

LORDS,  HOUSE  OF. 

Extent  to  which  precedents  of  are  followed 68 

MANITOBA,  JURISDICTION   OF  COURTS 11 

MARRIAGE. 

Contract  annulled   58 

Proof  of   36-41 

MINORITY    REPORT    57 

NEGLECT    .' 55 

NEW  BRUNSWICK  DIVORCE  COURT 1 

NO  MARRIAGE  55 

NOTICE  OF  APPLICATION. 

Advertisement  of 9,  13 

Proof  of  advertisement 13 

"       "   service    22,  31 

Substitutional  service   23,  25,  32 

NOVA  SCOTIA  DIVORCE  COURT 1 

OATH  OR  AFFIRMATION. 

Witnesses  examined  on  63 

ONTARIO  JURISDICTION  OF  COURTS 12 

PARLIAMENT. 

Jurisdiction  of  1 

Powers  unlimited   2 

Not  bound  to  recognize  American  divorces 5 

PARLIAMENTARY  SOLICITORS    62 

PAYMENT  OF  FEES   30 

PAUPERIS,  PROCEEDING  IN  FORMA 30,  31 

PETITION. 

Contents  of   16 

Form    18,  19,  87 

Indorsement  on  17 

Material  necessary  on  presentation 28,  29 

Notice  of  intention  to  oppose 21 

Signature  of   16,  18 

Verification  of   16 

Service  of  22,  23 

PETITIONER'S  ADULTERY. 

Good  defence   54 

PETITIONER'S  ATTENDANCE. 

At  hearing 63 


100  INDEX. 

PHOTOGRAPHS. 

As  evidence  of  identity  37 

POSTPONEMENT. 

Of  case,  to  following  session 14 

Readvertising  in  House  of  Commons 14 

PRINCE  EDWARD  ISLAND  DIVORCE  COURT 1 

PRECEDENTS  IN  HOUSE  OP  LORDS. 

Extent  to  which  followed 68 

PROVISIONS  FOR  WIFE'S  EXPENSES. 21 

PUBLICATION    TO    BE    PROVED    BEFORE    DIVORCE 
COMMITTEE    8,  31 

QUEBEC. 

Nullity  of  marriage  for  im potency 12 

READING  OF  BILL. 

First  reading  61 

Second  reading  61 

REPORTERS,   OFFICIAL    33 

RESPONDENT. 

Notice  to  be  sent  to  Clerk  of  Senate  by 21 

ROYAL  ASSENT  71 

RULES  OF  EVIDENCE. 

Under  Canada  Evidence  Act  to  be  observed 63,  64 

RULES  OF  PROCEDURE  5-7,72-83 

SASKATCHEWAN,  JURISDICTION  OF  COURTS 12 

SERVICE. 

Of  notice  of  application  and  petition 22,  23 

Provision  for  substitutional  service 22,  25,  32 

Proof  of  22,  31 

SUBSTITUTIONAL  SERVICE   22,  25,  32 

SUMMONS   FOR   WITNESS 65 

VENEREAL  DISEASE   35 

VOID  MARRIAGE    54 

WIFE. 

Her  equal  right  with  husband  to  divorce 2 

Her  position  under  English  Divorce  Act 2 

Her  right  to  financial  aid  to  oppose  petition 21 

WITNESS. 

Fees   65 

Refusal  to  attend 66 

Summons  for    65 

To  be  examined  on  oath 63 

YUKON  TERRITORY,  JURISDICTION  OF  COURTS. .        .   12 


000  699  433    9 


